FORUM SHOPPING
“…civil defense attorneys and industry advocates say it’s a trend that is exploiting state law and giving New Mexico a reputation as anti-business.”
Albuquerque Journal 6/28/15What is “Forum Shopping”?
Under a 1996 Supreme Court case, plaintiffs in a wrongful death suit filed in New Mexico can appoint a “personal representative” who lives in any part of the state. The case will then be filed, or transferred, to the jurisdiction where the “personal representative” resides. This option is routinely used by tort attorneys - on behalf of their clients - looking to change venues, or “forum shop.”
In search of big paydays, tort lawyers will find “personal representatives” who reside in jurisdictions where juries are inclined to award high-dollar verdicts and where judges are more plaintiff-friendly.
"...our holding in this case may lead to forum shopping by plaintiffs…If intrastate forum shopping is objectionable, then this must be remedied by legislative action not judicial invention.”
-New Mexico Supreme Court
First Financial Trust Co. v. Scott, 1996
How does it work?
The plaintiff in a wrongful death lawsuit hires a tort attorney who proceeds to recommend a personal representative for the case. This is a common legal practice throughout the United States.
However, in a twist unique to New Mexico, the personal representative is not required to live in the judicial district where the incident occurred - they can live anywhere in New Mexico! Furthermore, the personal representative doesn’t need a connection to the lawsuit at all. They can remain just a name on pieces of paper and a home location in a judicial district targeted by tort attorneys.
Most commonly, cases throughout the state are routed to the 1st and 4th Judicial Districts — the “prize destinations”, as called by some — both of which have histories of large verdicts awarded by juries.
Favorable and generous juries translate to big payouts for tort attorneys — so it’s no surprise that many of them are big fans of forum shopping. “It is true that there are many plaintiffs’ attorneys who do prefer to have their cases tried in counties such as San Miguel, Rio Arriba and Santa Fe, compared to other venues that are perceived to be more conservative,’ said Journal pollster Brian Sanderoff, demographer, jury consultant and president of Research & Polling Inc” (Albuquerque Journal, 6/28/15).
“It’s totally unfair, and it’s being done just to enhance judgments.”
-John Bannerman, defense attorney
Albuquerque Journal 6/28/15
The Impact
The seemingly small — but important — difference between common forum shopping and New Mexico’s laws (the representative does not have to reside in the judicial district where the incident took place) has opened the doors for substantial abuse. Businesses, local and state governments, and private citizens are all at risk of being brought before juries, sought out by tort attorneys in whichever district they please, that reward generous verdicts.
The question remains: should tort attorneys be able to take lawsuits to preferred courts and juries for the sake of a big payout?
Just four cases (detailed in the “Forum Shopping” graphic) delivered verdicts that would have cost New Mexico-based businesses over $274 million dollars. These cases were all rerouted to the “prize” 1st and 4th judicial districts and the results speak for themselves.
The New Mexico Supreme Court made it clear: it’s up to the New Mexico legislature to put an end to the practice of forum shopping.
Tort attorneys really know how to work the system and earn big money. To learn more about their influence on the courts and elections in New Mexico, click here to read our exposé “Follow the Money”.
