Forum shopping

Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment. Some states have, for example, become notorious as plaintiff-friendly jurisdictions and so have become litigation magnets even though there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.

Examples include the attraction of foreign litigants to the United States due to its expansive acceptance of personal jurisdiction and favorable litigation climate, and Great Britain for its stricter defamation laws.

The term has become adopted in a wider context for the activity of repeatedly seeking a venue or willing listener for a concern, complaint or action, until one is found.

Contents

Related notions

When a case is filed before a court, the court decides whether it has personal and subject matter jurisdiction, and if so, whether it is the most appropriate forum or venue. Under the doctrine of forum non conveniens, Latin for "inappropriate forum", a judge has a discretion to transfer a case if the court selected is not the most convenient one. If the courts in two states would accept civil jurisdiction, the plaintiff must be able to show that justice requires the trial to take place in the forum suggested by the plaintiff.

The plaintiff might have selected one forum on the following grounds:

  • The forum is not convenient to the defendant or his witnesses. There may be problems of expense of travel, health, or visa or entry permit.
  • The court, the judge, or the law is most likely to favour the plaintiff's case.

The defendant may take the following actions to seek a change of venue:

  • The defendant may petition the forum court that it should reject the jurisdiction and petition to transfer the case to an allegedly more convenient forum; or
  • If a case has been filed in another jurisdiction, the defendant may seek injunctive relief against the plaintiff in a second state, requiring that the plaintiff discontinue the action in the first forum and instead submit the case for hearing in this allegedly more convenient forum.

In both instances, the first step is to determine whether the first instance forum is the natural forum, or whether the forum has the closest connection with the action and the parties. The court adjudicates whether there is another forum that is more appropriate under the doctrine of comity. The current forum court must respect the right of a foreign court to assume jurisdiction. A court must balance the interests of the parties, since there is injustice not only when a plaintiff is allowed to pursue the action in a forum inconvenient to the defendant, but also when a plaintiff is not allowed a timely trial.

Generally, the court will not grant a petition to transfer or an injunction, if the grant will unjustly deprive the plaintiff of advantages in the first instance forum. Nevertheless, there should be a real and substantial connection between the venue and the cause(s) of action to provide some protection against defendants from being pursued in jurisdictions having little or no connection with the transaction or the parties.

If the alternative court concludes that another court has assumed jurisdiction either without considering whether there was an alternative forum or reached an obviously unreasonable conclusion on the merits, an injunction would sometimes be a reasonable response. If, on the other hand, the alternative court has reasonably concluded that there was no more convenient forum, comity requires it to respect the decision of the court that has already assumed jurisdiction and dismiss the application for an injunction and transfer. In cases where there is a sound argument to be made in favour of both courts, the court in the second venue should not arbitrarily claim a better right to decide for both jurisdictions. In most cases it will be obvious whether the foreign court has acted on principles similar to those applied in the second venue court and, if so, the second venue court should refuse relief.

The rules in the United States

The United States has attracted foreign litigants wishing to take advantage of the more generous awards of damages and alimony, extensive discovery rules, and the contingent fee system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Claims Act, and many state product liability laws create legal rights that often do not exist in other jurisdictions.

Forum shopping by the plaintiff

A plaintiff frequently has a choice of bringing a case in one of several jurisdictions, by picking a federal rather than a local jurisdiction, or a local rather than federal jurisdiction, or one of several geographic localities. The defendant in a civil case can be sued in a jurisdiction where he lives, or where the cause of action occurred. In the United States, the district court for the eastern district of Texas in Marshall, Texas has become a popular forum for patent lawsuits, since it found in favor of the plaintiff 78% of the time, compared to a national average of 59%.[1]

Forum shopping by the civil defendant

A defendant can resort to various procedures or theories to have a case removed from the court where the plaintiff originally filed it. The defendant may invoke the removal jurisdiction of a federal court to take a claim out of the state court, request for a change of venue because the case was brought in the improper court within the jurisdiction, and move for forum non conveniens on the ground that the case was brought in an inappropriate forum based on the locations of the parties or evidence.

Forum shopping in criminal cases

Forum shopping also happens, albeit less frequently, in U.S. federal criminal trials, especially as certain districts and circuits are widely thought to favor the government in particular issues or trials. It is often claimed that the U.S. federal trials of alleged terrorists were forum shopped.

Criminal defendants have much less power to change the forum in which the case against them has been brought. Generally, they can do so only where they can show that localized notoriety or publicity makes it unlikely that an impartial jury can be selected in the district in which charges were brought.

Efforts to dissuade forum shopping

Courts may object to forum shopping for several reasons. It would offend the sense of justice, if the fair resolution of a case should hinge on technical differences from one jurisdiction to the next. More practically, judges feel that their courts are overburdened and fear that having the reputation of a forum favorable to certain types of plaintiffs will increase their work load, thus delaying the timely dispensation of justice in other cases.

Under the Erie doctrine, a federal court hearing a case under the diversity jurisdiction must apply the law of the state in which the court is sitting. Under the choice of law, the law of the state which has the closest nexus to the case is applied.

Parties to a contract may seek to prevent forum shopping by inserting a forum selection clause or a choice of law clause in their contract. Such clauses are now generally enforced by the courts.

In the Philippines

Forum shopping is considered a serious offense which can be made by a complainant. The law in the Philippines explicitly prohibits the filing of more than one case for the same cause of action in any forum or court of law. The prohibition is done so that the courts will not be clogged by complaints of people who may file more than one complaint in an effort to gain a favorable decision in any of the numerous cases filed.

See also

References

  1. ^ So Small a Town, So Many Patent Suits, New York Times Magazine, September 24, 2006

External links


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Look at other dictionaries:

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