Forum Fights

A wrongful death action was brought against a motorist for the negligent operation of his vehicle and against the manufacturer of the boat trailer that was being pulled behind the driver’s vehicle.

Parties and witnesses were dispersed among several counties in the state.

The circuit court granted the manufacturer’s forum non conveniers motion to transfer venue from the county in which the plaintiffs filed to the county in which the accident occurred. The appellate court affirmed, but the Illinois Supreme Court reversed and remanded the matter, stating that granting the motion was an abuse of discretion. First National Bank v. Guerine, 198 Ill. 2d 511, 764 N.E. 2d 54 (2002).

The doctrine of intrastate forum non conveners has not been fully discussed by the state’s highest court since Peile v. Skelgas, Inc. 163 Ill. 2d. 511, 764 N.E. 2d 184 (1994). In that time, the courts have considered hundreds of petitions for leave to appeal on this issue with the Illinois Supreme Court exercising its supervisory authority more than 30 times to transfer cases away from plaintiff’s chosen fora. First National Bank v. Guerine, 198 Ill. 2d 511, 764 N.E. 2d 54 (2002) at 60. Although grounded in Section 2-101 of the Code of Civil Procedure, the court held it is " founded in considerations of fundamental fairness and sensible and effective judicial administration"[ citation omitted]. Id., at 57.

But, the court noted the realities of these venue fights amount to parties "jockeying for position by a judge, jury and forum that will enable them to achieve the best possible result for their clients." Id., 61, quoting, Gordon Magg, " Forum Non Conveniers in Illinois: A historical Review, Critical Analysis, and Proposal for Change," 25 So. Ill. L.J. 461, 510 (2001).

Let’s not kid ourselves. Despite a doctrine that calls for invocation only in exceptional circumstances, defendants have attempted to invoke it in an effort to deprive a plaintiff of a right to chose where to have his lawsuit heard. It’s apparent, however, that the courts see through this rhetoric of inconvenience and attempt to follow the rules as well as fair and reasonable weighing of the factors involved.

IN determining venue, the courts examine a variety of public and private interests factors that included the relative ease of access to sources of proof, the cost of obtaining the attendance of witnesses as well as compulsory process for unwilling witnesses, congestion of the courts involved and imposing jury duty on community with minimal connection to the case.

The trial judge is to balance these factors against the plaintiff’s right to select a forum. It is only when the plaintiff’s choice is deemed to have "no practice connections" to the litigation that plaintiff’s selection is to be thwarted. To clarify the doctrine in light of the explosion of cases to hit the dockets since Peilie , the Illinois Supreme Court in First National Bank held that "the balance of factors must strongly favor transfer of the case before the plaintiff can be deprived of his chosen forum." Id., at 64. This means that when potential witnesses are scattered throughout the state and no single county emerges as predominant, a trial court abuses its discretion in transferring venue. This case should serve as a warning signal to trial judges to more closely examine the merits versus the motivation of defendant’s forum non convenien motions, which have become a collateral cottage industry to stall litigation. Rule 306 allows for an interlocutory appeal from such an order, which means the delay in dealing with the final disposition of the matter can mean up to two years before reaching the merits of this case.

Maag in his thoughtful article suggests doing away with the doctrine altogether by judicial fiat since it was initially conceived in Torres v. Walsh, 456 N.E. 2d 601 (1983) He points out that instead of promoting judicial efficiency, the doctrine has created a glut in the courts to what might be to move a case to the next county or but a few miles. It has become a vehicle for harassment and lawyering chicanery, something that the public demands the profession do away with.

The court in First National Bank acknowledged that the need for the doctrine may bot be as great as when initially adopted. In speaking for a unanimous court, Justice Thomas Fitzgerald stated, " We live in a smaller world than the contemplated by the Gulf Oil [ Corp v. Gilbert, 330 U.S. 501 (1947) Court, or even this court in Torres. Today, we are connected by interstate highways, bustling airways, telecommunications, and the world wide web. Today’s convenience the touchstone of the forum non conveners doctrine- has a different meaning." Id., at 63.

although doing away with the doctrine may be a bit of a drastic remedy nevertheless , the first national bank case indicates that the courts are no longer going to be easily convinced by a defendant’s argument to transfer a case where the initial jurisdiction is proper.

Whereas previous case law may have held that the site of an accident may be the most appropriate forum, the Illinois Supreme Court is apparently more interested in balancing the factors, keeping in mind protection of the plaintiff’s initial choice of forum, as the doctrine was initially conceived. Equity pervades the thinking of the courts, and that can only be accomplished if the trial judges create or clear record as to the reasons for allowing a transfer so that a proper record is build upon which the appellate courts can properly reflect.