Ask the average person or even the average lawyer what they think of forum shopping. Generally, it is viewed as a crime against the people. So let’s talk about “forum selection” instead.
Forum selection is clearly important, demonstrated by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons why forum matters so much. There are choice of law, capacity to sue, statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client’s claim.
It spite of all of the hand-wringing about the crime against the people for plaintiffs’ lawyers to have – gasp! – options as to where to file a lawsuit, Maryland law defers in some measure to plaintiff’s selection as the choice of venue if venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has repeatedly held that it is “the moving party who has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let’s face it, the trial court has a lot of discretion on venue. A trial judge can pretty much ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the “weighs strongly” rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)
If you are a plaintiffs’ lawyer, you are practicing two types of forum
shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don’t seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. In other words, if you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don’t understand this.
Most personal injury lawyers in vehicle accident and medical malpractice lawyer are doing “horizontal” forum selection which is shopping for the county (or Baltimore City) the attorney believes will give the client the most favorable judgment or verdict.
In Maryland, I think we can all agree that Baltimore City and Prince George’s County are the best jurisdictions in Maryland to try personal injury cases. The bronze medal is up for grabs. Arguably, it could be federal court. But most accident and malpractice lawyers eschew federal court because they are not as comfortable and familiar in federal court. There is also the perception that there are more hoops to jump through in federal court in terms of expert and evidentiary issues.