When a plaintiff files a lawsuit, she may have a choice about where to file it. And so, she may consider the benefits and costs associated with different forums. Similarly, a defendant may oppose a lawsuit on the grounds that it should be in a different court. And so litigants may argue not just about the merits of a case, but about what court the case should be in. Despite the fact these procedural considerations and arguments may seem irrelevant to the subject matter of a dispute, they are some of the first things lawyers learn in law school and are fiercely litigated.

Why should you read this post about selecting a court?

  • You want an example of the kinds of disputes litigators have that may seem completely irrelevant and academic.

  • You just assumed that there was one court that businesses litigated in and now realize there are hundreds that can do similar things.

  • You are getting sued somewhere weird.

Image credit: https://en.wikipedia.org/wiki/Food_court#/media/File:Jeffferson_Mall_Food_Court.jpg

Convenience and Strategic Factors in Selecting a Court

A major reason why litigants select one court instead of another is that the court they select is more conveniently located. The court may be near where the plaintiff or other key witnesses live, so they can more easily testify there. Or it may be near where the plaintiff’s attorney works, so she can more easily represent the client and appear for hearings.

But there are other factors besides convenience. A plaintiff may select a court because she feels that the judges or juries there may be more sympathetic to her case. For example, a credit card company may prefer to litigate in Delaware, where many people work in the politically powerful credit card industry, than in another jurisdiction that may look less favorably on them. Or a plaintiff may select a court because that court has judges that may be more familiar with her issue. For example, a California court may have more experience deciding cases about movie production contracts than an Arkansas court.

Litigants may also select a specific court because the law in that court’s jurisdiction is more favorable to the them. Even though a court can apply the law of another jurisdiction, courts often apply the local jurisdiction’s law. And they very often apply their own rules for selecting which law applies, which may weigh in favor of applying their own law. Therefore, when a litigant knows that one state’s law is more favorable than another, she may try to “forum shop” and litigate in a court with more favorable law.

State Court vs. Federal Court

Even within a single jurisdiction, litigants may have the option of litigating in state or federal court. Generally speaking, many commercial cases that litigants could bring in state court the cases they bring in federal court. (The reverse may not be true, since there are specific requirements about when a litigant may bring a case in federal court).

Litigants often prefer federal court for several reasons. Many believe the judges are better. Federal courts also usually have fewer cases and more resources, and so they may handle cases more quickly than state courts. Federal courts may have broader jury pools that span multiple counties than state courts, which may limit their juries to residents of one particular county. And federal courts may be less political than state courts, since federal judges are not elected, are hard to remove from office, and are often not as connected to local political organizations as state judges.

But many litigants prefer state court. They may want a specific jury pool of county residents or a local judge who may be more sympathetic to the case than strangers from further away. Or they may prefer the procedures in state court, which may require the case proceed differently than in federal court. These differences may be a permissive attitude towards delays, an accelerated discovery schedule, or different discovery or disclosure rules altogether. They may also observe differences in how state and federal courts may interpret the same law and prefer the state court’s interpretation.

Removal and Change of Venue Motions

Plaintiffs are not the only litigants who have a say in where litigation takes place. After a plaintiff files a case in a court, the defendant can try to move the case.

A defendant may make a motion for “change of venue” because the plaintiff did not follow the rules for selecting an appropriate court. And even if the plaintiff did follow those rules, the defendant can argue that the court should apply the doctrine of “forum non conveniens” to move the case for various reasons. These motions are often very complicated and require the court to weigh numerous factors. I wrote a Litigation News article about an appeals court decision applying the doctrine.

A defendant in state court may also “remove” a case to federal court if the requirements for federal court jurisdiction apply. But a plaintiff may ask the federal court to “remand” the case back to state court if it contends the case belongs there.