Knowing the law applicable to a particular case and having a solid litigation defense strategy from which to work are keys to the success of most litigation defense counsel. It is also important for defense attorneys to familiarize themselves with the verdicts and procedures of particular counties to recognize when a request for a change of venue might be appropriate.
The effect of court locations can be significant
Some counties are known to be more favorable to one side or the other in a civil case. For example, civil lawsuits filed in downtown Cook County are known to move slowly through the courts. Of more concern to insurance defense attorneys is the potential for large, runaway verdicts in favor of plaintiffs.
On the other hand, courts in suburban counties are known for quicker case movement. Jurors in those counties tend to be more conservative and defense-friendly in their verdicts.
A defense attorney should evaluate each case to determine if it has been properly filed in the correct venue. Even if an argument can be made for keeping a case in Cook County, it might be possible to have it moved to a more convenient venue in one of the suburban counties.
Forum non conveniens and insurance defense strategy
Illinois Supreme Court Rule 187 permits the transfer of a civil case to another county even if venue was proper in the county in which it was originally filed. This is the equitable doctrine of forum non-conveniens that allows a trial court to decline jurisdiction where trial in another forum with proper jurisdiction and venue would better serve the ends of justice.
When presented with a motion to transfer for forum non-conveniens, the trial court weighs several public and private factors. The private factors include:
- Convenience of the parties
- Ease of access to witness testimony and real evidence
- Availability of securing attendance of unwilling witnesses
- Cost to obtain attendance of willing witnesses
- Possibility of viewing the scene or premises
- All other practical considerations that make a trial easier, expeditious and less expensive
Public interest factors that courts take into consideration include:
- Interest in deciding localized controversies at the local level
- Unfairness of imposing the expense of a trial and the burden of jury duty on residents of a county with little connection to the litigation
- Administrative difficulties presented by adding further litigation to the court docket in a county where court dockets might already be congested
At least one court, First Nat. Bank v. Guerine, 198 Ill. 2d 511, 517 (2002), has held that the public and private factors are not to be weighed against each other. Instead, a judge must evaluate the total circumstances of a case in deciding the issue of transfer to another venue.
Considerations for litigation defense attorneys and their clients
Most litigation defense attorneys would prefer faster movement to trial and a more conservative bench and jury pool. Settlement values are normally lower in cases in suburban counties because the threat of an unreasonably large verdict is diminished. However, one potential issue facing defense attorneys and their clients is the cost of traveling to the new county for case management conferences, motions and depositions. These costs may outweigh a change of venue application. This is particularly true in insurance defense cases with minor injuries or without significant damages.