Forum shopping

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Go Buy Zyban Online now! Go Buy Plavix Online now! Go Buy Norvasc Online now! Go Buy Ambien Online now! Go Buy Zyrtec Online now! Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. This is an increasingly serious problem because it balances the concept of party autonomy against broader concerns of justice and fairness. Some states have 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. For example, through its expansive acceptance of personal jurisdiction, the United States has attracted foreign litigants wishing to take advantage of the more generous awards of damages and alimony, the extensive discovery rules and, most importantly, the contingent fee system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Statute and product liability laws create legal rights that often do not exist in other jurisdictions.

Contents

[edit] Concepts

The standard preliminary issue in every case, whether purely domestic or including a foreign element, is the test to determine whether the court of first instance has jurisdiction and, if it has, whether it is the most appropriate forum. The principle expressed as forum non conveniens is the Latin for "inconvenient forum", and a judge may decline to hear, or to transfer, a case if the court selected is not the most convenient for the case. Every state drafts rules to determine where a lawsuit must be filed and, sometimes, a centralised but distant location may be inconvenient for the parties or witnesses. So long as the case is domestic, there can be no cause for complaint. The state has no brief to make often specialised resources available in the parties' home towns. But 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 plaintiff's proposed forum. This is a significant issue because the plaintiff might have selected one forum because:

  • it is believed that the defendant or key witnesses will not be able to travel to the state selected. There may be problems of cost, physical health or visa/entry permit eligibility. This strategy would enable the plaintiff to win the case by default.
  • the court or judge or body of law or rules of evidence are most likely to favour the plaintiff's case.

Hence, there are two different forms of action that may arise:

  • the defendant may appear in the forum court to argue that it should reject the jurisdiction; tactical considerations will determine whether there should also be an application 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 cases, the first step is to determine whether the first instance forum is the natural forum, i.e. the forum that has the closest connection with the action and the parties. This requires the court to determine whether there is another forum that is clearly more appropriate. The basis of the test is the Doctrine of Comity, i.e. the immediate forum court must respect the right of a foreign court to assume jurisdiction. The Canadian case of Braintech, Inc. v. Kostiuk [1999] B.C.J. No. 622 considered the effect of the internet in relation to defamation and recognised that if every jurisdiction in the world which has access to the internet took jurisdiction, it would have a crippling effect on the freedom of expression. Domestic courts therefore test the results arising from the choice of venue against criteria such as "oppressive" or "vexatious". Because the court is balancing practical issues of justice, there may be injustice to the defendant if the plaintiff is allowed to pursue the immediate proceedings, but also of injustice to the plaintiff if he or she is not allowed to do so. So, as a general rule, the court will not grant an application to transfer or an injunction if, by doing so, it 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.

But, if the alternative venue court concludes that the first instance 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 be a reasonable response. Equally, if the foreign court has reasonably concluded that there was no more convenient forum, Comity requires the second venue court to respect that decision and the application for an injunction and transfer should be dismissed. 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.

[edit] The rules in the United States

[edit] 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 usually be sued where he lives, or where the wrong was committed leading to the suit, or where the injury from that wrong was felt.

[edit] Forum shopping by the civil defendant

A defendant can use various methods to attempt to have a case removed from the court where the plaintiff originally filed it. These include invoking the removal jurisdiction of a federal court to take a claim out of the state court, requests for a change of venue contending that the case was brought in the wrong court within a system, and motions for forum non conveniens asserting that the case was brought in an inappropriate forum based on the locations of the parties or evidence.

[edit] 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 be more likely to favour the Government's case 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 notoriety or publicity makes it impossible for an impartial jury to be selected in the district where charges were brought.

[edit] Efforts to dissuade forum shopping

Courts may object to forum shopping for several reasons. Philosophically, the fair resolution of a case should not hinge on technical differences from one juridiction to the next. On a more practical level, many judges feel that their courts are overburdened, and fear that having the reputation of a forum favourable to certain types of plaintiffs will lead to an increase in their workload, thus delaying the dispensation of justice in other cases.

One policy that has arisen from such concerns is the Erie doctrine, which holds that a federal court hearing a case under its diversity jurisdiction must apply the law of the state in which the court is sitting. Another policy practised by states is the use of choice of law principles to apply the law of another state.

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

[edit] 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.

[edit] See also

[edit] External links

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