Forum Shopping II | Manhattan Personal Injury Attorney


As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

With respect to cases brought in New York City, it is well recognized that, almost invariably, a lawsuit filed in the Federal Courts (again, presuming jurisdiction exists) will reach its conclusion well before a lawsuit, based on exactly the same incident, would reach its conclusion in State court. If time may be an important factor, such as the presence of an elderly or ill client or witness, this could become decisive.

More amorphous or subtle considerations are apt to enter the picture as well.  Discovery rules differ in Federal and State courts, and if certain discovery is crucial to a case, the experienced attorney will factor that issue into the choice of “venue”.

And choice of courts is not only limited to one state vs. another state’s courts or State vs. Federal court.   It may well come down to as simple a choice as to which county within one state (again presuming a choice exists)  one should file the lawsuit.  Here, again, the length of time to bring a lawsuit to conclusion can differ significantly between counties.  And, though attorneys may be somewhat loathe to admit this fact, “common knowledge” among the profession has it that certain counties may have juries that are more favorably disposed towards plaintiffs than other counties–while others are more favorably disposed towards defendants.

The practice of law, and in particular it’s applicability to the  field of Personal Injury Law, is highly technical.   It is filled with issues that require not only “book  knowledge” but also the need to “sense” factors that can only come with experience.  As this topic of “FORUM SHOPPING” clearly demonstrates, some factors that would never appear on the client’s “radar screen” could well make a dramatic difference in the outcome of that client’s case, even before the client is aware that a case has begun !!

Forum Shopping | Brooklyn Personal Injury Attorney




As any experienced litigation attorney will explain, more often than not there will be a choice of courts in which to bring a lawsuit you may be contemplating.  Among attorneys, this is known as choosing a “venue.”

Often the venue choice will be between state courts in different counties.  Other times, it may be a matter of choosing to bring the case in either a state or a federal court.

Experienced attorneys fully realize that the choice of “venue” at the very beginning of a case can, in and of itself, spell the difference between  great, or merely modest, success,  and at times it can even mean the difference between success and complete failure!

In 2004 a disabled passenger fell down a flight of stairs while disembarking from a commuter airline (Elasaad v. Independence Air) in Philadelphia.   The lawsuit was brought in the state court.  The state court ruled that federal law applied.   Since federal law requires that a disabled passenger must request assistance before the airline is obligated to lend assistance, and the passenger in this case failed to request assistance, the case was dismissed by the state judge.

Since appeals are both time consuming and costly, pursuing an appeal from a court decision is not a frequent event.In this case however, an appeal found its way to the Federal Court of Appeals which reversed the state court decision.  The Federal Appeals Court found that while federal rules do apply while the plane is in flight, state laws may apply while passengers are disembarking. Federal law did not pre-empt state law in such a situation. The case, originally brought by the Plaintiff in state court, may stay in state court and state law may apply. Since state law does not require a prior request for assistance to an airline by a disabled passenger, before the airline becomes responsible, the passenger was victorious.

While the attorneys in this matter certainly chose the correct court originally in which to bring this lawsuit, it was the original court that got the law wrong!  The diligence of the Plaintiff’s attorneys corrected that mistake.  Future attorneys will take note of this case.  Those attorneys that keep track of cases as they develop (which is essential for any competent, experienced attorney), will be aware that the choice of venue in cases of this nature will be the state, and not federal, court.

“Forum shopping” extends beyond issues of conflicting laws.  Often it concerns itself with more subtle issues.  We will touch on this subject in another posting.