The Volokh Conspiracy
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Forum Shopping is Rational
Advocates on the right and the left choose their ideal forum, as they should
The Texas Attorney General is often criticized for forum shopping–that is, filing cases in specific courts where there is a high probability of drawing a specific judge. This criticism is unwarranted. All lawyers forum shop–even government lawyers. Attorneys who fail to secure the best venue for their client engage in legal malpractice. If you represent a Plaintiff, you generally want to be in state court. And if you represent a Defendant, you generally want to be in a federal court. If you represent a criminal defendant, and can file a valid motion for change of venue, you should do so.
Generally, in large cities, where several judges sit on a given bench, it is impossible for Plaintiffs to pick and choose which judge they get. But in smaller cities, specific divisions may have one or two judges. By choosing from among many single-member divisions, lawyers can, in some cases, choose what judge or judges take their case.
Advocacy groups have long understood this point. I recently visited the federal district courthouse in Montgomery, Alabama. The building is named after Judge Frank M. Johnson. The legendary Eisenhower appointee issued many important civil rights rulings. The New York Times listed several of the cases in his obituary:
In a career that spanned almost four decades—24 years in Federal District Court in Alabama and 13 years on an appeals court with wide jurisdiction in the South—Judge Johnson ordered the desegregation of public schools and colleges, parks, libraries, museums, depots, airports, restaurants, restrooms and other public places, as well as the Alabama State Police.
In 1965 he issued another historic order that allowed Dr. King to lead a 52-mile march from Selma to Montgomery to protest the denial of black voting rights. He did so after Alabama troopers clubbed marchers and used tear gas in a spectacle witnessed on television by a horrified nation, and after President Lyndon B. Johnson federalized the Alabama National Guard to protect the marchers.
For some time, Judge Johnson was the only federal judge in Montgomery. Plaintiffs who filed suit in Montgomery had a 100% chance of drawing Judge Johnson. Why did the Plaintiffs file suit in Montgomery (the terminus of the march) rather than in Selma (the origin of the march)? A lawyer in Montgomery told me that civil rights groups forum shopped, and directed the case to Judge Johnson's docket. As they should have.
In Unprecedented, I discussed how the Florida Attorney General filed suit against the ACA in Pensacola, rather than Tallahassee (the state capital), to avoid a specific judge on that bench.
The Attorney General's office is located in Tallahassee, which is situated in the Northern District of Florida. This court had divisions in Pensacola, Gainesville, and Tallahassee. Attorney General McCollum decided against filing in Tallahassee because he and his staff had grown "very frustrated" with that court's chief judge, Robert Lewis Hinkle, who was appointed by President Clinton in 1996.
If the action was filed in Tallahassee, McCollum thought that Hinkle could assign the case to whomever he wanted. Under the local practice, a case filed in Gainesville could be pulled to Tallahassee. A senior attorney in the office told me that McCollum, concerned with how this big and political case "might be handled before Hinkle," decided that filing in Pensacola would be ideal.
One attorney said that McCollum "knows his benches," but said it was "horseshit" that the attorney general picked Pensacola based on the political affiliation of the judges. But in response to a question about the affiliations of the judges, another lawyer from Florida told me, coyly, "We knew where judges come from." Be that as it may, the three judges in Pensacola had been appointed by Republican presidents. Judge Margaret Rodgers was appointed by President George W. Bush in 2003. Judge Lacey Collier was appointed by President George H. W. Bush in 1991. And most importantly, Judge Roger Vinson was appointed by President Ronald Reagan in 1983. The case was assigned to Judge Vinson.
Forum shopping, on the left and the right, is possible in just about any state. Even Texas! Today, Perkins Coie filed a suit on behalf of Sylvania Bruni, the Texas Democratic Party, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee. The complaint challenges Texas's decision to repeal "straight-ticket" voting. The defendant was the Texas Secretary of State. Was the complaint filed in the Western District of Texas in Austin, where the Secretary of State resides, and where the Texas Democratic Party is also located? Seems like a convenient venue. Indeed, the firm filed at least two other election cases against the Secretary of State in that division (Gilby v. Hughs and Miller v. Hughs).
No, they did not choose Austin. Instead the suit was filed in the Southern District of Texas, Laredo Division. Why did they choose that border-town, which is a four-hour drive from Austin?
Sylvia Bruni, the named plaintiff, is "Chair of the Webb County Democratic Party, the countywide organization representing Democratic candidates and voters throughout Webb County." Laredo is in Webb County. Texas has 254 counties. At quick glance, the Texas Democratic Party has a chair for most, if not all counties. Of all the counties in Texas, why did the Plaintiffs choose Webb County?
I can offer a guess. By my count, the Laredo Division is the only division in the Southern District of Texas where there is a 0% chance of drawing a Republican-appointed judge. In contrast, the bench in Western District in Austin has appointees from several Presidents. This practice is not new in Texas. Several years ago, a string of prominent voting-rights case were filed in the Corpus Christi division and not in the state capital. At the time, there was a 0% chance of drawing a Republican-appointed judge.
As a general rule, when a party files a suit in a specific division, and there is no necessary connection to that division, I presume the Plaintiffs shopped for an ideal forum. And there is nothing wrong with that decision.
Law students, weaned on Erie, are lead to believe forum shopping is bad. No way. Forum shopping is entirely rational. To the extent a problem exists, Congress can eliminate single-judge districts. Or in case of single-judge districts, a certain percentage of cases can be assigned, at random, to judges elsewhere in the division, and not just the Chief Judge, as is now the practice in the Northern District of Texas, Wichita Falls Division. But don't blame the lawyers.