Trump and Forum Shopping

It is only natural that any litigant would want their case heard by the most sympathetic and favorable judge or jury. As long as there have been judges and litigants, savvy lawyers have selected their judge or court based upon their knowledge or perception that they will get their best result in that venue. This has created an aspect of litigation that every lawyer is aware of but doesn’t get much notoriety known as forum shopping.

Some well-known examples by subject matter are as follows. Asbestos plaintiffs usually prefer Mississippi, West Virginia, Texas and Illinois. Filing in these jurisdictions can result in much higher jury verdicts because the juries are particularly generous against the national manufacturers and sellers of asbestos products. Defamation plaintiffs try to avoid bringing defamation suits in states with Anti-Slapp statutes (approximately 29 states) which make recovery for defamation extremely difficult. The best place to bring defamation suits is in the UK, which is very liberal against defaming defendants. Patent plaintiffs love the Eastern District of Texas for similar reasons. The SEC prefers to bring Frank-Dodd complaints in the 2d and 3d circuits which have made fairly liberal interpretations of that law.

Probably the most notorious example of forum shopping are the cases recently brought by various groups opposing Trump’s administration. Trump and his administration has been sued approximately 134 times since he took office, and by far the choice of forum are districts within the 9th Circuit. While a large number of these cases involve EPA issues accusing the administration of failing to protect various endangered species or to consider adverse consequences of administrative rulings, the higher profile cases involve challenges to Trump’s immigration policies and the rights of sanctuary cities. Ironically, Trump’s administration has sued California over California’s recently enacted sanctuary city legislation in the Federal District Court in Sacramento, California. It is obvious that given the administration’s record in the lower courts of the 9th Circuit the administration would have preferred another jurisdiction, but due to the nature of the litigation that had to sue in California.

It is clear that the politics of appointing Federal judges is framing the face of jurisprudence in this country. Of the 25 active Justices of the 9th Circuit, 18 were selected by Democratic Presidents and 7 were selected by Republican Presidents. The 9th Circuit has been reversed by the US Supreme Court 79% of the 9th Circuit cases reviewed by the Supreme Court. This was the third worst record, the 6th Circuit and 11th Circuit having worse success rates. Given the fact that the US Supreme Court is more conservative with the appointment of Justice Gorsuch, it is anyone’s guess how the rulings against the Trump Administration will fare.

Forum shopping in the political arena is obvious. With so many temporarily successful challenges to the Trump administration being filed in US District Courts comprising the 9th Circuit, it is anyone’s guess how long this will continue.