What is Forum Shopping?

Understanding this Particular Issue, will Explain the Lawfare Against Trump's Executive Orders

By Chuck Warren

I am not an attorney; hence, I consulted with several attorneys to come up with this brief 'what is forum shopping' piece. This is purely educational.

Basically, ‘forum shopping’ refers to the "practice of choosing the court or jurisdiction that is most likely to provide a favorable outcome for a legal case, often when multiple courts have jurisdiction.”

To expand upon that, a fundamental principle of due process and judicial review is that a plaintiff has the right to select the forum in which to file a lawsuit.

In many cases, a litigant may have the option to file in either federal or state court, depending on jurisdictional considerations. When multiple courts have jurisdiction over a case, plaintiffs may choose among them based on strategic factors, such as procedural rules, judicial precedent, or the likelihood of success on the merits.

However, this discretion also gives rise to the practice known as ‘forum shopping,’ where a litigant selects a court not because it is the most appropriate or neutral venue, but because it is perceived as more favorable to their case. This could be due to a court’s past rulings on similar issues, the composition of potential juries, or the ideological leanings of judges. While strategic litigation decisions are a routine part of legal advocacy, improper forum shopping—where a case is filed primarily to exploit judicial predispositions rather than seek a fair resolution—raises concerns about fairness and judicial integrity.

To mitigate the risks associated with forum shopping, several legal doctrines exist to ensure cases are heard in the most appropriate venue. Appellate review serves as a safeguard against judicial overreach, ensuring that no single trial court has the final say on matters of significant legal consequence. The doctrine of forum non conveniens allows courts to dismiss cases that would be more properly litigated in a different jurisdiction. Additionally, rules governing venue transfer enable courts to reassign cases to a more suitable forum when appropriate.

While forum selection is a legitimate and important aspect of litigation strategy, the public should remain cautious of instances where courts are chosen primarily for their perceived ideological leanings rather than their jurisdictional propriety. That said, the legal system has mechanisms in place to prevent abuses, and litigants who engage in overt gamesmanship may find that their strategy ultimately backfires in higher courts.

Note: the opinions expressed herein are those of Chuck Warren only and not his co-host Sam Stone or Breaking Battlegrounds’ staff.