HIGH COURT URGED TO FIX CHOICE OF FORUM

October 29, 2001

By Steven P. Garmisa
Hoey Farina & Downes
sgarmisa@felahfd.com

The greeting from a defense attorney when I started handling appeals for injured railroad employees was, "Welcome to the Railroad Wars."

One casualty of the Railroad Wars in Illinois is the tradition of deference to a plaintiff's choice of forum. Also wounded is the judiciary, which is suffering collateral damage as judges become bogged down in what William A. Lewis (the former Illinois Appellate Court justice from the 5th District) called a quagmire of minutiae.

Gordon E. Maag, a current 5th District justice, tells the story of forum non conveniens in Illinois, peers into the quagmire and makes several proposals for reform in the new issue of the Southern Illinois University Law Journal. "Forum non Conveniens in Illinois: A Historical Review, Critical Analysis, and Proposal for Change," 25 Southern Illinois University Law Journal 461.

Before he became a judge and was eventually promoted to the Appellate Court, Maag (a former paratrooper) fought on both sides of the Railroad Wars, handling forum non conveniens fights for both railroads and tort plaintiffs, all the way from trial court through argument in the Illinois Supreme Court and 7th U.S. Circuit Court of Appeals.

The Illinois Supreme Court adopted forum non conveniens in 1948. Initially, the doctrine received a cool reception in Illinois. In 1981, though, the court became "openly hostile to cases imported from other states," Maag says.

"During the late 1970s, what had been a moderate number of cases filed in Illinois from other states increased significantly. Most of these 'imported' cases were [railroad] cases and many were filed in St. Clair and Madison counties in Illinois."

Despite the traditional deference to a plaintiff's choice of forum, "the court stated that those interests may not override the judiciary's interest in a properly functioning, efficient judicial system." Eventually, Maag says, "the members of the Supreme Court became zealots on behalf of the doctrine [of forum non conveniens]."

Then in 1983, the Illinois Supreme Court adopted intrastate forum non conveniens. Now, Maag says, "a plaintiff's compliance with the venue statute results in little or no deference being given to plaintiff's choice of forum."

Summing things up, Maag says: "We know the Supreme Court has a firmly entrenched philosophy favoring the doctrine. The purported reason is the interest of an expeditious, orderly and efficient judicial system."

Litigants dutifully recite and analyze a litany of factors that trial judges are supposed to balance in deciding whether a case should be dismissed or transferred to another court under the doctrine of forum non conveniens. Yet, Maag argues, "[T]he forum non conveniens analysis systematically recited by litigants and courts is a charade."

Today, Maag says, we have a "torrent of forum non conveniens motions in the trial court, a torrent of petitions for leave to appeal under Rule 306 (to the Appellate Court), and a Supreme Court that has decided to rule by supervisory order, without bothering to explain its decision. One can only surmise that while the Appellate Court must defer to the discretion of the trial court, the Supreme Court can and will substitute its judgment for both lower courts. Of course, it has the power to do so if it chooses. In any event, the flood of appeals continues."

As Maag recounts, "Under the Supreme Court's view, the strict application of forum non conveniens principles will lead to efficiency. Written decisions explaining the court's reasoning have largely been supplanted by supervisory orders, and de novo review has de facto replaced deference to the discretion of the trial judge. Today in Illinois, the rule nearly requires a plaintiff to file in the county where the accident happened or the case will be transferred to that county. If the case arose in another state it is likely to be dismissed.

"Only one factor seems to really matter. That factor is place of occurrence. The lone exception may be if a plaintiff files in his county of residence. This is not enhancing efficiency. The quagmire grows. The appeals multiply. The delays are magnified."

Maag concludes with several proposals for reform. Ideally he believes: "Intrastate forum non conveniens should be abolished. ... A plaintiff that complies with the venue requirements ought to receive deference to his choice of forum and ought not be forced to try his case in the defendant's chosen forum."

With interstate forum non conveniens, he suggests experimenting with the St. Louis approach. "[T]he Circuit Court of St. Louis, Mo., has applied a bright- line test. Under the test, the Circuit Court will not dismiss based on forum non conveniens if the case arose within 300 miles of the courthouse."

Maag suggests that "a similar rule in Illinois may well be worth trying. There is nothing magical about 300 miles. Perhaps a 100- or 200-mile rule would be more appropriate. ... Under such a rule, as long as the case originated within the distance provided, it would be immune from a forum non conveniens motion. If the point of origin of the case was at a greater distance than specified, traditional forum non conveniens rules would apply."

Finally, to deal with defendants that use forum non conveniens motions to stall cases with a year or two of interlocutory appeals, Maag proposes: "If after completion of the appellate route the plaintiff's choice of forum remains undisturbed, prejudgment interest on any award should be required."

It is hard to do justice to Maag's arguments and proposals in a short column (particularly with editors who believe shorter is better).

Fortunately, Maag's article is available for free on the law journal Web site: www.law.siu.edu/lawjour/25_3/index.htm.

With Acrobat Reader, you can print an exact duplicate of the article as it appears in the journal, or download a copy into a notebook or palm computer, for reading during the train trip home.

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