What is “forum shopping”?
In civil law cases, “forum shopping” refers to the practice by some parties in some cases of deliberately searching through multiple courts or jurisdictions in order to file or transfer the case to one that is most likely to give that party the result he wants. Forum shopping can be done by either the plaintiff, the defendant, or both parties. It can occur among courts or states within the United States, or it can occur between different countries. For instance, courts in the United Kingdom often find defamation defendants trying to get their cases into a U.K. court because the country’s defamation laws are more protective of defendants than the defamation laws in other countries, including the U.S.
Forum Shopping by Plaintiffs
A plaintiff in a personal injury or torts case often has a choice of courts in which to file a case. For instance, the plaintiff may file in the state court in the county in which she lives, or she may file in the state court in the county where the injury took place. If every defendant in the case is from a different state than every plaintiff and the amount of money in dispute is substantial, the plaintiff may also have the choice to file in federal court.
Generally, plaintiffs are not accused of improper forum-shopping if their choice of court is based on sound principles of jurisdiction. For instance, if a plaintiff who lives in New Jersey decides to file her car accident case in New York, where the accident occurred, most courts will see this as a reasonable choice, not an attempt to game the system. However, the defendant may still challenge the jurisdiction or venue as improper, if there is a reason to do so – including the defendant’s own inability to travel to the jurisdiction or venue for hearings or trial.
Forum-Shopping by Defendants
Defendants in personal injury and other cases may also engage in forum-shopping. The two most common ways for a defendant to change a forum are to challenge either the jurisdiction of the court in which the case was filed, or its venue. Jurisdiction claims are usually based on the argument that the court in which the case was filed has no power over the defendant. For instance, if the defendant does not live within the court’s jurisdiction and has no property in the state, he may be able to argue successfully that the court cannot hold him responsible or enforce its judgments.
Venue claims are often based on bias or prejudice, especially in high-profile cases. A venue claim doesn’t question whether or not the court has the power to hear the case; instead, it claims that the particular courthouse or courtroom is in a location that cannot possibly give the defendant a fair trail, perhaps because the news coverage of the case has been so great that everyone likely to be on the jury already has pre-conceived notions against the defendant.
A defendant may also petition for “removal jurisdiction” in order to move a case from state to federal court. Removal jurisdiction is often used in diversity jurisdiction circumstances, especially when the plaintiff filed in her home state. Often, the defendant’s argument is that a federal court, which is not attached to any particular state, will be fairer to an out-of-state defendant than a state court would be.
Court Power Over Forum Shopping
In order to cut down on forum shopping, courts may use choice of law rules, in particular the rule of “forum non convenience” or “inappropriate forum,” to send cases to courts that have stronger jurisdiction claims. Courts may refuse to take a particular case if the court doesn’t have jurisdiction, if the venue is not proper, if taking the case would “offend the sense of justice,” or if a fair resolution of the case would be more difficult due to the court’s particular procedural or technical rules. Often, courts try to discourage forum-shopping so that cases that are only loosely connected to the court’s jurisdiction do not overwhelm cases that actually belong in that court.
Courts are also required to follow several different legal rules that are designed to cut down on forum-shopping. For instance, the Erie doctrine requires federal courts to apply state substantive law if no federal law preempts the state law. This rule helps reduce forum-shopping by eliminating the advantage one party might have if state law were not applied to her case.
Private parties can also try to reduce forum-shopping by agreeing beforehand where they will bring a legal dispute if it comes up. Many contracts, for instance, contain forum clauses that specify that a breach of contract claim must be brought in a particular jurisdiction.
