Virginia: Wrongful Death – a Lawyer’s Amicus

Virginia: Wrongful Death – a Lawyer’s Amicus

On March 20, 2014, the Virginia Supreme Court granted Mr. Waterman’s Motion for Leave to File Reply Brief Amicus Curiae of Virginia Trial Lawyers Association in Support of Appellants in Harman and Bemberis v. Honeywell Int’l, Inc., No. 130627. In that consolidated appeal of manufacturer product liability for wrongful deaths, Honeywell refused to consent to Mr. Waterman filing his Reply Brief and then filed its Memorandum Opposition to his Motion.

Indeed, in its Brief of Appellee at 40-41, Honeywell had accused that Mr. Waterman’s (initial) Brief Amicus Curiae was “in substance a second merits brief” and “transparent plot to use an amicus brief to expand the page limits for the Administrators’ arguments, not a serious assessment of the public interest”. But jurisprudence showed Honeywell wrong: amicus curiae was not collusive, e.g. Bottoms v. Bottoms, 249 Va. 410 (1995)(4 Appellee amici curiae more than quadrupling page limits); and Honeywell misconstrued amicus curiae status.

Amicus is a non-party “who petitions the court…to file a brief in the action because that person has a strong interest in the subject matter”. Black’s Law Dictionary (9th ed. 2009) at 98. The Virginia Supreme Court recognizes amicus “on the ground that it…has a substantial interest in the subject matter”. Whitehead v. H and C Dev. Corp., 204 Va. 144, 149 (1961).

Federal law in Virginia is consistent, explicit, and persuasive authority. “Although an amicus…is not a party to the litigation and participates only to assist the court, nevertheless, by the nature of things an amicus is not normally impartial…and there is no rule…that amici must be totally disinterested.” Tafas v. Dudas, 511 F. Supp.2d 652, 661 (E.D.Va. 2007).

Va. Sup. Ct. R. 5:30(e)(emphasis added) states, “A brief amicus curiae shall comply with the rules applicable to the party supported.” This contemplates amicus reaching the merits. Cf., Tafas, 511 F. Supp.2d at 652 (“mere fact that a non-party seeks to put forth [merits] opinion in the case does not disqualify it as an amicus”).