The Home (Forum) Is Where the Heart Is

During holidays in law school, I remember boarding the plane to fly home, filled with excitement to return to my old stomping grounds and awaiting the rush of fond memories. At home, I knew where to go, what to do, and how to get everywhere. The hole-in-the-wall restaurants, the best stores, and all of the shortcuts were at my fingertips without a second thought—not to mention the familiar faces of friends and family welcoming me back. Like many, I have always felt an undeniable comfort whenever I travel home.

It is hard to find that same comfort elsewhere, especially in the day-to-day grind as a commercial trial lawyer. Often, this job feels like a never-ending exercise expanding your comfort zone, facing constant challenges from all sides. It is an occupational hazard. After a few years, however, things start to become familiar. There are the cases you recite, the arguments you reuse, and the clever lines you recycle. It is not always reinventing the wheel. Yet, there is one particular moment that I find the most comforting—stepping into a courthouse in Dallas. Having clerked and practiced for several years here, those courthouses have in many ways become a home of their own.

Being in your home court has obvious benefits. You know the local rules and procedures. You understand the judges and their preferences. You know what to expect from opposing lawyers. Most important, in my view, I can connect with the juries. I am one of them after all. These are the things I excitedly tell the client when I find out the client’s case is in Dallas. It is a literal home-court advantage. But it is not just about the merits; the little things matter too. I know what time I have to wake up on a hearing day, how long it will take to get to the courthouse, and where to park. I know what courthouse security is like. I know where to find the good (and less good) coffee. I get to the courtroom without breaking a sweat. This job is stressful enough, so I find comfort where I can.

The Downsides of Being Out of State

The opposite is true when I show up for the first time in an out-of-state courthouse. Of course, I have to fly out the night before because risk-averse lawyers and airline uncertainty do not mix. Then what about the return flight? No one wants to linger about after a hearing, but I also do not want to miss my flight. I consistently fail to properly weigh the length of the hearing, the commute to the airport, and airport security. And I am often left sitting at counsel table, listening to opposing counsel drone on only to realize, after some quick math, that I had to leave 30 minutes ago to make my flight.

After I resolve that crisis, there is the dilemma of the hotel. I endlessly scroll through substandard options, wondering if the pictures and reviews are actually real or just hiding a bedbug infestation. And then how close to the courthouse should I be? Would I rather stay at a worse hotel near the courthouse or a nicer one far away? Would I rather be tired after a poor night’s sleep or tired from waking up early to commute? Or maybe there is only one hotel in a 50-mile radius. The decision has been made for me, but there are other implications about where I am headed.

Once I have the travel planned, there is the chaos of the travel itself. I triple-check that I have packed everything. God forbid I forget my suit jacket and have to wear an overcoat the entire time (true story, thankfully not about me) or forget a dress shirt and have to wear just a T-shirt under my suit jacket (also a true story, even more thankfully not about me). I then overstuff my briefcase with a computer, office supplies I will not use, and an excessive number of courtesy copies. Lugging that around will make up for the workouts I will miss while away.

Eventually, I make it to the airport, board the flight, and get settled in. My next dilemma: How do I spend the next three hours? The overthinker in me whispers that I should prepare more. But that same overthinker in me also says I should use this time to rest. The result: I end up oscillating between these extremes, unclear if I am really doing either. After landing and wrestling with the rental car, I usually make it to the hotel more or less in one piece and go straight to bed.

Then comes the next morning. I wake up absurdly early because no one wants to be that guy the court is waiting on. I get dressed, hoping that the hotel iron does not burn my clothes, and head to the courthouse, navigating through an unnecessarily complex courthouse parking garage and trying not to appear lost looking for the entrance. I then fumble through security, setting off the metal detector, and as I frantically pat myself down to figure out what is in my pocket, I turn to see the stalled line of impatient lawyers behind me steadily grow.

Eventually, I reach the courtroom way too early because I allotted two hours for a 30-minute journey. So I sit and wait. After what feels like days, my hearing time arrives. I approach counsel table and am inevitably welcomed with the ceremonial “I see some new faces today” or “You are not from around here, are you?” or “It must be hot down in Texas.” I laugh, make a joke about the Cowboys, and get to it.

After the hearing, I quickly (but respectfully) rush out of the courtroom to catch my flight. Then the best part—the hours sitting on the plane and pondering. One moment, I am riding high on how well the hearing went. But then exhaustion kicks in and my brain goes blank. Inevitably, I nitpick my performance: the witty response that did not come to me at just the right moment, the answer I wish I had rephrased slightly, and all the other ways it could have gone differently. After what seems like eons since I left, I land in Dallas and drag myself home.

Forum Selection Clauses

For all these reasons, I feel a spark of joy whenever, at the outset of the case, I see one of my favorite contractual provisions—a forum selection clause for my home venue. We have all come across one. For example: “All claims arising out of or relating to this agreement shall be brought in the United States District Court for the Northern District of Texas located in Dallas, Texas.” A contractual agreement by the parties that certain claims will be litigated in a specified forum. It is my ticket home for the holidays. But how nonstop is that flight?

Analyzing a forum selection clause involves several steps. The first basic question is determining whether it is mandatory or permissive. As it sounds, a mandatory forum selection clause requires litigation in the specified forum. To be mandatory, the forum selection clause must have clear and explicit language of exclusivity. Indicating that a forum is “exclusive” is a good start. It can also specify that any litigation “must” or “shall” be in that forum. Hopefully, the language includes all of the above. While there is no single formulation for such a clause, one thing is clear: It needs to clearly reflect the intent of the parties to require a specific forum to the exclusion of others. If it does, my ticket home has just been punched.

Otherwise, the forum selection clause is permissive. A permissive forum selection clause merely allows—but does not require—litigation in the specified forum. The case might be at home but there is no guarantee. If I am the plaintiff, I can simply file at home because the defendant already agreed to it. But what if I am the defendant and the plaintiff has gone and filed elsewhere? Well, then, I may be stuck. Nothing in the contract prohibits it. Hurricane Opposing Counsel just diverted my flight home.

Assuming the forum selection clause is mandatory—as I hope it is—the next question is whether the claims at issue fall within the scope of the clause. These clauses generally have three formulations: claims “under” the agreement, claims “arising from” or “arising out of” the agreement, and claims “relating to” or “concerning” the agreement. “Under” is the narrowest. It typically applies only to specific claims for breach of contract or that require interpretation of the contract. Slightly broader is “arising from” or “arising out of.” This usually applies to claims for breach of contract or other claims that depend on the existence or terms of the agreement. In other words, the contract and contractual rights are material to the claim or, but for them, the claim would not exist.

While helpful, these formulations will not automatically get me home. If I am the plaintiff, it may not matter. I can just go ahead and file in my home venue. Even if the claims fall outside the scope of the forum selection clause, is the defendant really going to try to move just some of the claims? Does the defendant really want to do this piecemeal and engage in duplicative litigation (assuming the defendant even has some basis to move those claims at all)? Just because a claim falls outside the forum selection clause does not mean I otherwise cannot file it at home, assuming the usual requirements of venue and jurisdiction are satisfied.

As is often the case with forum selection, the defendant faces a more complicated situation. If the plaintiff parades off and files in the plaintiff’s hometown and the forum selection clause is not expansive, what then? I can try to move the claims that fall in the forum selection clause to my home, but then I am the one who has to consider litigating the case piecemeal. Maybe I ask the court to transfer the whole thing in the interests of economy. That leaves me in an awkward spot, though. I show up to the foreign court and tell it, “I like you, but not enough to stick around.” It is the judicial version of “It’s not you; it’s me.” And what if, after all of that, the foreign court keeps some or all of the case? Wish me luck, then.

When a forum selection clause covers all claims “relating to” the agreement, courts widely recognize the breadth of this language, which includes any claims that have any conceivable connection to the contract. In fact, I have yet to find any relevant claim between two contractual parties that would fall outside this broad language, which means I have a first-class ticket home. Even with such broad language, this is no guarantee that my flight home will not face turbulence. As we have all experienced—and as some have attempted—a client trying to evade a contract or a venue may attempt any creative solution he or she can find. Courts generally recognize a few categories of potential bases to invalidate a forum selection clause, including where the forum selection clause was not reasonably communicated to the party, where the forum selection clause was induced by fraud or overreaching, where the clause’s enforcement would be contrary to public policy, or where the forum is so gravely difficult and inconvenient that the party will be deprived of his or her day in court. But courts generally treat forum selection clauses as presumptively valid, so any such tactic faces an uphill battle.

But even if the forum selection clause is broad and mandatory, opposing counsel could just file in another state anyway. What do you do when your flight has been diverted like this? Much as I want to avoid it, the only way out is to actually show up in the foreign court and cry foul, seeking to enforce the forum selection clause. The Supreme Court has made clear, at least in federal court, you do so through a motion to transfer venue under 28 U.S.C. § 1404 or for forum non conveniens—not a Federal Rule of Civil Procedure 12(b)(3) motion to dismiss for improper venue.

While I prefer avoiding uncomfortable departures, an Irish goodbye is not yet an acceptable litigation tactic. There may be a close alternative, though—the anti-suit injunction, which allows enforcement of the forum selection clause at home. If the counterparty files elsewhere and a mandatory forum selection clause requires the case be in Dallas, it is possible to file an injunction prohibiting opposing counsel from breaching the forum selection provision by proceeding with the foreign litigation. Although anti-suit injunctions often require compelling or extraordinary circumstances, courts are more receptive to them when enforcing a mandatory forum selection clause. It is often easy to establish a likelihood of success on the merits because breach of the provision is clear. Better yet, being deprived of the agreed-upon forum can, alone, constitute irreparable harm. In other words, the anti-suit injunction is like skipping the long customer service line at the airport I had been diverted to and just rebooking the flight home myself.

My travel woes aside, I have mostly enjoyed traveling to new venues where I can learn from lawyers and judges from all different backgrounds. I have bonded with colleagues on the adventures with me. Importantly, I have also turbocharged my airline status. Ultimately, I am thankful to have a practice busy enough to even have these experiences. It is only because of opportunities that I have stories to share in the first place. I suppose, then, that these travel calamities are a blessing and not a curse, but blessings aside, home is still where my heart is.

Leo Park can be reached at [email protected].