V. Choice of Forum Considerations

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

V. CHOICE-OF-FORUM CONSIDERATIONS

Most choice-of-forum discussions focus at least initially on plaintiffs because they are responsible for choosing the court in which to file a suit. Defendants, however, have an equal interest in which court will hear a case. Accordingly, the factors that may convince some § 1983 plaintiffs to select state courts often lead defendants to seek ways to avoid remaining in state courts. Given the liberal federal question removal statute, state court defendants who prefer to defend § 1983 claims in federal court can almost always remove such cases, and they are increasingly doing so.⁸⁹

A full review of choice-of-forum considerations is beyond the scope of this chapter,⁹⁰ but some of the more important factors deserve mention. At first, however, a caveat: At best, any choice-of-forum discussion only identifies factors that should be considered. Which direction these factors point will vary based on the nature of the case, the identity and attitudes of the parties and lawyers, the relief sought, the identity of the judge, and the respective roles of the judge and the jury. In addition, the body of relevant precedents as well as myriad tactical considerations influence choice-of-forum decisions.

A. The Decisionmakers

1. The Judges

The identity of the judge who will hear a case is one of the more important choice-of-forum factors, but it is difficult to generalize as to how differences between state and federal judges influence choice-of-forum decisions in specific cases. Moreover, because it is not possible to know which judge in a multi-judge district or division will be assigned to a particular case (or will keep a case through trial), initial judgments about the attractiveness of the state or federal benches are necessarily collective judgments.⁹¹

Federal trial judges clearly have better jobs than their state counterparts do. They have higher wages, better working conditions, and greater job security, including a guarantee of life tenure that enables them to remain not only above partisan politics but also independent of the bar, the public, and the media.⁹² State court judges, on the other hand, lack the independence that characterizes the federal bench, especially in states that have rejected "merit selection" and have retained the tradition of a politicized and partisan elected state judiciary.⁹³

Federal judges also have the institutional support to give their cases adequate attention. Their caseloads are significantly lighter than those of state trial judges, and their resources are invariably more substantial than those available to their state court counterparts.

These generalizations do not do justice to the subtle forces that influence individual judges. Many state court judges, despite their lack of resources, efficiently manage their caseloads. Likewise, many federal court judges, despite their institutional advantages, do not.⁹⁴ Thus, like collective judgments about the competence or attitudes of the state or federal judiciary, generalizations about efficiency or capacity have little relevance as to how an individual judge will act in a specific case.

2. The Juries

There are significant differences in the composition of juries in the state and federal courts, as well as in their mode of selection and method of operation. State court juries are typically selected from a venire representing a single county, unlike multi-county federal juries.⁹⁵ Thus, state court juries more closely resemble the county in which a suit is filed. Lawyers in many state courts conduct the voir dire and thus play a greater role in selecting juries than do lawyers in the federal courts. Finally, juries in most state court systems decide civil cases by a non-unanimous vote rather than by the unanimous vote required in federal court under both the Seventh Amendment and the Federal Rules of Civil Procedure.⁹⁶

B. Doctrinal Limitations on Federal Courts

Federal courts are courts of limited jurisdiction, and federal practice is characterized by restrictive policies on such justiciability requirements as standing, mootness, and ripeness. Likewise, the various abstention doctrines limit the equitable power of federal courts.

Despite the suggestions that have been made by some academic commentators who have argued that state courts should be required to follow federal policies when entertaining federal claims,⁹⁷ it is well established that state courts operate independently of federal constraints and may hear federal claims that federal courts cannot hear.⁹⁸ For example, in Texas Association of Business v. Texas Air Control Board,⁹⁹the Texas Supreme Court looked to state law as the source of a broader standing doctrine than that used in federal courts:¹⁰⁰

The differences between our Texas Constitution and the Federal Constitution not only justify, but also require, that citizen groups be accorded a broader right of access to our state courts. The Texas Constitution contains no express limitation of courts' jurisdiction to "cases" or "controversies," as provided by the federal charter. . . . Instead, it affirmatively protects the rights of litigants to gain access to our judicial system.¹⁰¹

Consistent with these principles, many state courts, unlike federal courts, make broad use of taxpayer standing.¹⁰² Also, unlike federal courts, state courts have rejected the narrow federal mootness¹⁰³ and ripeness¹⁰⁴ doctrines and have refused to apply the strict federal standing requirements involving third-party standing¹⁰⁵ and causation and redressibility.¹⁰⁶

On the other hand, state courts may be limited in their ability to refuse to hear § 1983 claims that federal courts could hear. For example, a narrow state court interpretation of what controversies are justiciable may not be an adequate state ground on which to base a judgment and preclude Supreme Court review of a state court case rejecting a federal claim.¹⁰⁷

C. Tactical Differences

State and federal courts often have different procedural policies governing civil litigation. Despite the widespread adoption of rules of civil procedure patterned after the Federal Rules of Civil Procedure, many states have resisted the influence of the federal rules. Indeed, some states, including several of the most populous ones, retain systems of code pleading and do not fully embrace the philosophy of notice pleading that characterizes the federal rules.¹⁰⁸ Moreover, even states that follow the lead of the Federal Rules sometimes reject federal policies. Finally, some states that have adopted identical rules have construed the rules differently from the federal courts.

Federal Rule of Civil Procedure 11 and the willingness of federal judges to use (or to threaten to use) Rule 11 and other sanctions may deter some plaintiffs from filing § 1983 cases in federal courts.¹⁰⁹ In state courts, however, the analogous rules generally have far fewer teeth.¹¹⁰ Even more importantly, state trial court judges are often reluctant to use sanctions aggressively against lawyers whose support they may need to retain their jobs.

Federal case management procedures are also more demanding than analogous state procedures, especially in the age of "civil justice reform."¹¹¹ Because moving cases to trial quickly is one of plaintiffs' goals, one might think that plaintiffs would prefer judges who have both the tools and the inclination to accomplish this. Nonetheless, some plaintiffs resist what they believe to be overly demanding case management requirements, and they often have concerns about the interventionist approach of many federal judges.

Discovery rules in the state and federal courts are becoming less similar. The federal courts have made major changes in discovery, moving to a system of uniform mandatory pretrial disclosure;¹¹² state courts, however, have moved in multiple directions, with some having embraced mandatory disclosure and an expanded role for trial judges in the pre-trial process while others have adhered to the traditional discovery model.¹¹³

State and federal courts also have different policies concerning litigation against defendants whose identity is unknown at the time the suit is filed— an issue that often arises in § 1983 litigation. The federal rules, consistent with the approach followed in most states, do not treat the naming of a fictitious John Doe defendant (whose real identity is unknown) as a "mistake" sufficient to justify relation back (for...