<strong>Loyola</strong><strong>Law</strong>yer 5 WHEN IS FORUM SHOPPING ETHICAL? I have been writing a bi-monthly column on forum selection for the National <strong>Law</strong> Journal for about ten years. It would be silly for the National <strong>Law</strong> Journal to run a forum selection column if the practice were a bad or unethical thing. So, forum selection, ie, the process of choosing among various proper fora for resolving a case, must be a good thing even though most of us picked up in law school the notion that somehow forum shopping is evil. Congress and President Bush obviously agree, and we still see all kinds of references to “outrageous” and blatant forum shopping that needs to be stamped out. For example, the purpose of the CAFA, as Senator Arlen Specter, chair of the Senate Judiciary Committee, put it, is “to prevent judge shopping to states and even counties where courts and judges have a prejudicial predisposition on cases. Regrettably, the history has been that there are some states in the United States and even some counties where there is forum shopping, which means that lawyers will look to that particular state, that particular county, to get an advantage.” 4 As suggested above, however, what may appear to be evil forum shopping to one side, may simply be crafty use of available forum selection tools. Semantics: I deliberately used the title “Forum Selection” for my column to avoid the baggage that goes along with the term “Forum Shopping.” Let me suggest a way of distinguishing between ethical forum shopping or selection, on the one hand, and bad forum selection or shopping on the other: In my view, a plaintiff’s lawyer is guilty of malpractice if he or she does not consider what forum is the best forum for resolving a client’s dispute. And, a defense attorney similarly disserves a client if no attention is paid to whether a case can be better resolved in a different jurisdiction. Forum selection analysis is thus not only an ethical practice, but it would be unethical not to engage in it because the client’s cause may be better served in a different forum. Knowledge of the rules of personal jurisdiction, subject matter jurisdiction, venue and the like are critical to a successful forum selection battle—that is why so much time in the Civil Procedure course is devoted to those topics. Accordingly, if there is a reasonable argument for pursuing claims in a particular forum, an attorney has a duty to consider whether to litigate there. Perhaps the downsides of defeat are too great to risk the necessary resources, but certainly there should be no ethical bar to doing so. Trying to stay in state court, for example, and out of federal court may appear manipulative, but it is nothing new. And, the courts generally agree. For example, take the facts of a Ninth Circuit case, Baddie v. Berkeley Farms, Inc. 5 The plaintiff filed a lawsuit in state court alleging state law and federal claims. The defendants removed the case to the federal court based on the plaintiff’s federal law claim allegations. Once in federal court, the plaintiff filed an amended complaint and sought a remand to state court. The defendant moved for sanctions. The Ninth Circuit properly ruled: “A plaintiff is entitled to file both state and federal causes of action in state court. The defendant is entitled to remove. The plaintiff is entitled to settle certain claims or dismiss them with leave of the court. The district court has discretion to grant or deny remand. Those are the pieces that comprise plaintiffs’ allegedly manipulative pleading practices. We are not convinced that such practices were anything to be discouraged.” <strong>Law</strong>yers should not be criticized or punished for forum shopping unless the forum they have chosen plainly lacks jurisdiction over the parties or the subject matter of the dispute, or otherwise, FEATURE 4 151 Cong Rec S 999. 5 64 F.3d 487, 490-91 (9th Cir. 1995). 6 See Sussman v. Bank of Israel, 56 F.3d 450 (2d Cir. 1995) (The court found that it was not sanctionable to file colorable claims in a proper but inconvenient forum for the purpose of exerting settlement pressure on a related case).
<strong>Loyola</strong><strong>Law</strong>yer 2005 6 FEATURE
Change language