Forum shopping?


As a lawyer who spends most of my working time reading cases, I have read a lot of cases.  I generally read cases that I have found because they relate to a particular issue that I am researching.  Something new this week.  I changed my research service to Westlaw, so I’ve been taking some time to find and read random cases as a way to practice using Westlaw.

That is how I found BNSF Railway Co. v. Tyrrell, 2017 WL 2322834 (U.S. May 30, 2017).  Very enjoyable reading.  The issue is whether 45 U.S.C. § 56 addresses personal jurisdiction over railroads.  The plaintiffs in the two consolidated cases were neither residents of nor injured in Montana, but they sued BNSF Railway in that state any way.

If you do a general web search to read reviews of this case, you will often see the term “forum shopping.”  Writers have characterized the opinion as a roadblock on “forum shopping” or strongly discouraging “forum shopping.”  You would think that “forum shopping” was the equivalent of some disgusting crime that threatens the democracy and our court system.

The truth is that “forum selection” is a critical consideration in every case, always for plaintiffs and often for defendants.  Yes, defendants.  I represented plaintiffs in a case where we carefully chose our forum, knowing that the defendants had a very strong argument for removal.  The defendants never removed, however, and we got to keep our preferred forum.  And yes, I think it made a difference.

Before filing any suit, plaintiffs’ counsel should consider where to file that complaint.  Sometimes the answer is simple because a statute or case law very clearly limits the forum.  But you often have a choice.  Here are some factors to weigh, with the ultimate decision being based on the best interest of the client.

  1. What is the substantive law in the available forums? This can be a complicated question because there are multiple legal rules in every case. For examples, one forum may allow for punitive damages.  That sounds favorable, but that same forum may also allow the defendant broader defenses to liability.  This factor requires thoughtful and thorough analysis of the substantive law of both forums.
  2. How strong is your argument that each forum is proper under applicable law? The risk here can be significant; a bad or wrong choice can result in sanctions, extra fees and expenses, as well as lost time.
  3. Do you have a statute of limitations issue? If the claim is barred in one forum, this may be a determinative factor.
  4. How long will it likely take to conclude the case in each jurisdiction? This is a hard question, but there are some jurisdictions that report their disposition times.
  5. Are you (the lawyer) authorized to practice in both forums? Do you need local counsel?
  6. What can you (the lawyer) contribute in each of the forums? If the preferred forum is one in which you are not licensed or is far away, will the client be better served by referring that client to a local lawyer?
  7. What are the different costs of litigation in the two districts? For example, the client pays for travel expenses (either directly or as a contingency).  Is that expense worth the difference?  Yes, I would love for a client to pay for me to go to New York (where I could also see Hello Dolly), but does it serve the client better to litigate here in Nashville.

In the end, attention to “forum shopping” or “forum selection” – choosing the place in which to file – is a legitimate and proper consideration for any lawyer.  But it is just one of the many elements of the analysis that is required before filing any suit.


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