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.

NEXT: You Don't Become a "State Actor" Just by Getting Government Funding or Benefits,

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “Rational” does not always mean “good.”

    Lawyers can forum shop, and arguably should focus on getting a good judge. But there should be limits. For example, joining a defendant simply for a convenient forum, then releasing that defendant once jurisdiction is secured should not be encouraged.

    Nor does it speak well of the judiciary that lawyers can forum shop. It is both a failure of procedure and a failure of an impartial legal system that lawyers can receive a tactical advantage based on their choice of forum.

    The end result is unjust results, higher costs for clients, and less respect for the legal system.

    Individual forum shopping may be rational, but it is hard to argue that it is good in the aggregate.

    1. I agree, with this general criticism. While forum shopping may be rational in the individual cases, in the aggregate, it’s a sign that the law is being unevenly applied and that cases that generally wouldn’t succeed are selectively getting through due to individual judging quirks.

      The situations that lead to forum shopping as a rational tactic should be attempted to be reversed. This is even more so with current trends towards national injunctions.

    2. This seems clearly right.

    3. Nice comment.

    4. Excellent comment.

    5. “Rational” does not always mean “good.”

      Thank you. This is so obvious that you have to wonder about the writer.

    6. Man, all sides of the spectrum agreeing with this comment just bodying the OP’s blithe conflation of rational with good.

      (Similar to the author conflating constitutionally permissible with good in some other posts)

  2. If forum shopping is rational, that means that judges are not.

  3. “Rational” does not always mean “good.”

    Right. Appealing to jury prejudice is also rational, but it is not good.
    Ditto bribery.

  4. Superb essay, Prof. Blackman.

    It’s unfortunate that the term “forum shopping” has come to include even perfectly appropriate choices made for legitimate tactical reasons, with no intent illegal or even improper intent. Good lawyers universally include forum selection clauses and choice of law clauses in the contracts they draft, and courts will generally uphold those so long as there’s a reasonable relationship between the parties and the selected forum. But when there’s no underlying contract, or one that doesn’t include forum selection and choice of law clauses, then a trial lawyer who’s preparing to file a new case MUST makes similar choices when, as is often the case, there are multiple legitimate alternative forums, each of which has such a reasonable relationship. The trial lawyer’s choice ought also be called “forum selection,” to avoid the pejorative hint of impropriety in the word “shopping.”

    Your reference to tactical success and blunders in forum selection choices made me immediately think of the criticisms leveled at the LA District Attorney’s team for filing the criminal case against OJ in downtown LA instead of in Brentwood. Many observers (including this one) believe that tactical blunder became outcome determinative and resulted in the acquittal of a guilty man.

    1. Apologies for my poor proof-reading of that comment.

      Here’s a superb discussion of the forum selection decision-making by OJ’s prosecutors and the consequences of that decision, written by a blogger whose day-job was (and still is) as an LA County Assistant DA (although he joined that department long after the OJ trial).

  5. So’s embezzlement.

  6. Personally, I think forum shopping is a healthy development. To me, it guarantees that diverse legal ideologies will weigh in, and decide a legal question. That is as it should be, no? We should want a legal question to be considered from as many different viewpoints as possible.

    Where I have an issue is the abuse of nationwide injunctions. Up to the very recent past, you’d see 2-3 nationwide injunctions, that were generally quickly addressed by the circuit courts. In the last few years, the average skyrocketed to ~18 nationwide injunctions annually. And of course, it is slow-walked wherever possible. That is wrong, and it is an abuse of judicial power.

    1. The nationwide injunction serves judicial economy. Once it loses in any one court, it is collaterally estoppel from contesting in any other court.

      1. The issue is that it is a one-way ratchet. The plaintiffs, assuming one can continue to locate allegedly aggrieved individuals, are not estopped. But once they win a single case, it is game over nationwide.

        This is not necessarily a left/right debate. Recall that before all the immigration cases, some right wingers challenged the Obama DOL’s revisions top the exempt employee classification rules. They found a sympathetic judge in TX and blammo, no more revisions.

      2. “Once it loses in any one court, it is collaterally estoppel from contesting in any other court.”

        But that is not what happens now. Multiple districts either issue or deny injunctions.

    2. Commenter_XY, I don’t want a legal question to be considered from as many different viewpoints as possible—if by that you mean political viewpoints. I want the question considered from zero political viewpoints.

      1. lathrop, you’re the guy who used the word ‘political’. I speak of legal viewpoints (philosophies) only.

        The nationwide injunction explosion we see is a straight-up abuse of judicial power. That has to stop.

  7. Forum shopping, like diversity jurisdiction, relies on the premise that some courts are inherently unfair.

  8. “But don’t blame the lawyers.”

    The more I have reflected on variations of this statement (many of which I make), the more I have come to understand that if lawyers make the rules and lawyers adjudicate the rules, it really cannot be a defense to say, “Hey, we’re just following the rules.”

    If it’s a problem, then lawyers can fix it. If it’s not a problem, then the whole, “Don’t hate the players, hate the game” doesn’t follow when the players have designed the game.

    Other than that, as already stated, just because something is rational for an individual does not mean that it is a good choice in the aggregate for a society.

  9. Forum shopping as you describe it proves that contra dogma, we have a government of men, not laws.

    1. Really? Show us the proof.

  10. Yeah, I’m not objecting to the lawyers doing the forum shopping, I’m objecting to the legal system letting them do it.

    Your example of the Texas straight-ticket voting case, for example. It should be a routine matter for the clerical staff to see that there’s a co-incidence of the defendant and one of the four plaintiffs in another district, and automatically move it to that district. (Sure, the plaintiffs should be allowed to file to move it back, if they can show good cause or get the agreement of the defendant.)

  11. This is absurd. I was recently assured there were no liberal judges or conservative judges!

  12. Forum shopping is BAD.

    What does it say about the so-called “rule of law” that the forum in which a case is heard determines the outcome? Is that the “rule of law” or the “rule of judge”?

    Obviously, we live in the real world. The rule of law is, to some extent, an illusion. Who the judge is matters. I mean, to the extent that we have “celebrated judges” or even “celebrity judges” aren’t we admitting that?

    Forum shopping is just a manifestation of the problem, not the problem itself.

  13. Some rational-but-bad forum shopping by the gummint (concurrence is most fun).

    http://media.ca11.uscourts.gov/opinions/pub/files/201714294.pdf

Please to post comments