Bus and Motor Coach Library

A Process Known as "Forum Shopping"...

Author - Tom Frenkel (2003)

Transportation entities are particularly vulnerable to lawsuits in distant jurisdictions. This is because carriers commonly have operations in many locales and serve customers from many locales. Courts have traditionally given great deference to a plaintiff's choice of forum.        

In other words, a person filing a lawsuit is generally given great latitude in choosing where to file a lawsuit, as long as the laws and rules of court consider the defendant to be subject to the governance of that jurisdiction. Without going into great detail, suffice it to say that a party may generally be sued wherever that defendant is a citizen, resides, transacts business, owns real estate, makes or performs duties under a contract, is served with a summons while within that jurisdiction, has consented to the jurisdiction, or a whole host of other connections with that forum.

Basically, the defendant only needs to have sufficient contacts with the jurisdiction such that the courts believe that the defendant has purposefully benefitted from its relationship with that jurisdiction.
Companies which operate rolling stock over a state's highways are considered to have consented to the jurisdiction of that state's courts related to the highway use. That's reasonable, as a matter of common sense. It is equally reasonable to assume that a lawsuit can be brought wherever the acts that gave rise to the lawsuit occurred.

However, that's not always the case. There is an insidious side to the ease in gaining jurisdiction over a transportation company, and selecting a court to hear the lawsuit. The danger lurks in a process known as forum shopping. Basically, forum shopping is the process of selecting a court which best favors your lawsuit. A plaintiff usually wants to bring a lawsuit to where his client is most likely to receive favorable rulings and large awards. A defendant seeks favorable rulings and conservative awards.

Forum shopping is not endorsed by the courts, however, it is often practiced on a daily basis by attorneys. Attorneys study court rulings, jury verdicts, and awards. We categorize them by jurisdiction and magnitude of award. We do the same for the appellate courts which may review a trial court's judgments, rulings, and processes. Sometimes state courts and federal courts have concurrent jurisdiction. That is to say that a matter may be tried in either state or federal court. There are strategic advantages to each. The differences between the rules of state and federal courts can sometimes make a difference in the outcome of a case. Some courts seem to endorse liberal interpretations of the law, while others are more conservative. It is not uncommon to see plaintiffs with similar injuries reap awards which are several times greater in a "friendly" jurisdiction, than those same injuries would generate in a more conservative jurisdiction.             

The difference is widely attributed to the combined nature of the citizens who comprise the jury pool and the tenor of the local courts.  Once a lawsuit has been filed, defense counsel must consider (among other factors) whether jurisdiction over his client is proper and whether a more favorable forum is available under the law. If a lawsuit can be properly brought in more than one jurisdiction, defense attorneys will sometimes invoke a doctrine known as “forum non conveniens” (literally: inconvenient location) in an attempt to relocate the proceedings to a more appropriate venue. Federal and state courts generally apply similar analyses to determine if a case should be relocated under this doctrine. Without going into the legal arguments, let's look at the facts in such a case.

A recent Illinois Supreme Court case arose from a motor vehicle collision, which involved a tractor-trailer operated by the Union Pacific Railroad, on an Illinois highway in Macoupin County. There is no question that a lawsuit arising from this accident would be properly brought in that county. Madison County, Illinois, is a neighboring county, only a few miles down the road. Madison County is renowned for high jury awards.  In fact, I’ve been told that a respected financial publication recently published an article which suggested that a prospective stock purchaser should check to see if there are any class action lawsuits pending in Madison County, Illinois, against the company whose stock is being considered for purchase. Railroads are commonly found to "do business in" any jurisdiction where they own track or conduct operations. Union Pacific conducted operations in both counties. Therefore, jurisdiction over Union Pacific was proper in both counties. Incidentally, the plaintiff did not live in either of those counties.

The plaintiff brought a lawsuit against Union Pacific in Madison County, even though that was neither the site of the collision, nor the county of the plaintiff's residence. A legal dispute arose regarding the “forum non conveniens” doctrine. Please note that, in this example, there is no question about which state has jurisdiction. The only question is which county's courts will hear the lawsuit.

Union Pacific asserted that the case should be transferred from Madison County, as an inconvenient forum, because the incidents occurred in Macoupin County, Union Pacific is a Delaware corporation with its principal place of business in Omaha, Nebraska, none of the 18 potential witnesses live in Madison County, and that the Madison County courts were more congested than the Macoupin County Courts.

The plaintiff opposed the transfer by offering that Madison County is just as convenient as Macoupin County.

In support of the Madison County lawsuit, the plaintiff offered that Union Pacific operated a Madison County facility, 14 of the 18 potential witnesses didn't reside in either of the counties, witnesses would have to travel only 18 more miles to Madison County than Macoupin, most witnesses regularly conduct business in Madison County, plaintiff's attorneys were from Madison County, Union Pacific's attorneys were closer to Madison County than Macoupin County, and the plaintiff's choice of forum should be given deference. The trial court denied the motion to transfer and kept the lawsuit in Madison County. Union Pacific appealed that decision, and the appellate court affirmed that denial. The matter was subsequently appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed the trial and appellate courts and ordered the case transferred to Macoupin County. The Illinois Supreme Court went to great length to explain that the plaintiff is customarily offered deference in selecting a proper forum, but when selecting a court which is not the site of the collision, nor the county of plaintiff's residence, that it is "reasonable to conclude that the plaintiff engaged in forum shopping to suit his individual interests, a strategy contrary to the purposes behind the venue rules." In doing so, that court sent a message to all courts in the State of Illinois regarding forum shopping. Further, this decision has a persuasive analysis which can be offered to any court in any state.

It is logical, reasonable, and proper that anyone benefitting from association with a state or its citizens should be subject to the courts of that state. However, when the only connection with the venue where a lawsuit is brought relates to the likelihood of greater awards from lawsuits in the courts of that jurisdiction, the courts will sometimes be persuaded to transfer the cause of action to a more appropriate forum. Courts are "all over the road" on this issue.

However, where forum shopping is apparent, the Illinois Supreme Court has provided one more tool to those of us who defend transportation companies.

Thomas R. Frenkel is an attorney, licensed to practice in Illinois, Minnesota, and the District of Columbia.  Mr. Frenkel has a unique blend of legal and practical transportation and hospitality industry experience.  He is a past president of the National Tour Association (NTA), a past two-term board member of the Travel Industry Association of America (TIA), a founding member of the Hospitality Skills Standards Board (which was created under directive of the United States Department of Labor), and a member of the Transportation Lawyers Association.  Tom Frenkel was the Editor in Chief of the Southern Illinois University Law Journal.  He practices law from his office at Feirich/Mager/Green/Ryan, Attorneys at Law, a law firm which enjoys the highest ratings in both quality of legal service and quality of ethical standards by Martindale-Hubbell, an independent service which rates legal professionals.  Tom Frenkel may be contacted at FMGR, 2001 West Main Street, P.O. Box 1570, Carbondale, Illinois, USA, 62903-1570.  Phone: (618) 529-3000, email:  This magazine is proud to feature Mr. Frenkel's commentary, as a contributing writer.  This column is featured for the interest of our readers, but does not constitute legal advice; nor does any attorney-client relationship arise through its publication.