Forum

FORUM

A court of justice where disputes are heard and decided; a judicial tribune that hears and decides disputes; a place of jurisdiction where remedies afforded by the law are pursued.

The appropriate forum for a lawsuit depends upon which court has jurisdiction over the parties and the subject matter of the case, a matter governed mostly by statutes and court rules. For example, rules of procedure provide that disputes involving a certain dollar amount or disputes between citizens of different states may be heard in a particular court. When a contract is the subject of the litigation, the parties may have included in the contract a forum selection clause that designates the court where any disputes arising from the contract may be heard. A forum selection clause will generally be upheld by a court unless the party resisting it can show that enforcement of the clause would be unfair or unreasonable under the circumstances of the particular case.

When more than one court is the appropriate forum to hear a dispute, the plaintiff may engage in forum shopping. In this situation, the plaintiff seeks to have a dispute heard in the court that the plaintiff believes will render the most favorable verdict or judgment, regardless of whether that forum imposes hardship or inconvenience on the opposing party. The defendant may even be unable to appear in the forum selected by the plaintiff, thus permitting the plaintiff to win the action by default.

Forum shopping is frowned upon by the courts. Many federal and state procedural rules, as well as federal and state statutes, discourage this practice by limiting a plaintiff's choice of forum to locations reasonably convenient to both parties. The Uniform Child Custody Jurisdiction Act, for example, limits the exercise of jurisdiction over child custody decrees to the home state of the child.

A court that has jurisdiction may decline to exercise it when the parties and the interests of justice would benefit if the action were heard in another court that also has jurisdiction over the matter. This is called the doctrine of forum non conveniens (Latin for "forum not convenient"). A defendant seeking to invoke the doctrine of forum non conveniens must make a motion to have the action dismissed even though the original forum has jurisdiction to hear the action. The court, in its discretion, will consider a number of factors in deciding whether to grant or deny the motion, including whether the necessary witnesses can be compelled to attend the proceedings and the cost of obtaining their attendance; ease of access to evidence pertinent to the dispute, including the distance from the site of the events that resulted in the litigation; and any other practical factors that would facilitate the trial of the lawsuit. For instance, if a lawsuit is brought in Alaska but all the witnesses live in Washington State, and the property that is the subject of the dispute is also in Washington, then the court may conclude that it is more convenient to litigate the case in Washington than in Alaska. In some states, however, the court will rarely dismiss an action on the grounds of forum non conveniens when the plaintiff is a resident of the forum state. In addition, to protect the plaintiff's interests, a court will permit dismissal of the action only if the plaintiff consents to the trial of the lawsuit in the more convenient forum.

In the federal court system and within many states, statutes have been enacted to allow a court to transfer a case to another court that operates within the same system or state and where the case might have been brought in the first place. Thus, the court to which the case is transferred must also have jurisdiction over the matter. Unlike a forum non conveniens motion, a transfer request may be made by either party and does not require that the action be dismissed and then reinstituted in the new court. In addition, to obtain a transfer, the requesting party needs to show a lesser degree of inconvenience than that required before a court will grant a forum non conveniens motion. For example, federal law provides that a case may be transferred from one federal forum to another "[f]or the convenience of parties and witnesses" and "in the interest of justice" (28 U.S.C.A. § 1404(a) (West Supp. 1995)). But, since transfers are limited to courts within the same system or state, a defendant who wants to change from a federal forum to a state court, or to a court in another country, or from a state court of one state to a state court of another state, must still bring a motion to dismiss the action based on forum non conveniens.

further readings

Gunnarsson, Helen W. 2003. "Breathing New Life Into Forum Non Conveniens?" Illinois Bar Journal 91 (October).