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Civil Litigation FLASHPOINTS February 2020

February 14, 2020Print This Post Print This Post

David J. Handley & Panos T. Topalis | Tribler Orpett & Meyer P.C., Chicago
312-201-6424 | E-mail David J. Handley | 312-201-6422 | E-mail Panos T. Topalis

Below is an excerpt from §5.3 of CIVIL PRACTICE: OPENING THE CASE 2019 EDITION, part of a series on guiding attorneys through the stages of civil litigation.

Strategic Considerations When Selecting Venue

Most lawsuits have but one proper venue, and a choice, when available, is a valuable privilege that should be exercised with both legal and extralegal considerations in mind. While such choices are usually made by the plaintiff, there will be instances when a defendant who is entitled to transfer venue will decide that he or she is better off in the original county. There are several factors for both sides to consider in making choices of venue, including the following:

The judge. An attorney choosing among downstate counties must consider the ability, personality, and judicial predisposition of the judge most likely to hear the case and must candidly evaluate his or her relationship with that judge. Sections 5.39 and 5.40 of CIVIL PRACTICE: OPENING THE CASE discuss how to substitute for the assigned judge, both with and without alleging prejudice, but this is something that the plaintiff should avoid when choosing venue. There often is no initial choice of judge under the “day of trial” assignment system in Cook County. Both parties must wait until they are assigned out and then decide whether they must take a substitution from the trial judge.

Opposing counsel. A defendant may use different attorneys in one available county than in another. All other factors being reasonably equal, the plaintiff may, therefore, use venue to seek to avoid or obtain a particular opponent.

Verdict reputation. An attorney handling personal injury litigation for the plaintiff will try to file suit in the available county that generally returns the largest verdicts. This does not always depend on population, and the attorney must carefully consider the verdict reputation of each county.

Backlog. It may be important to have a prompt decision. Some counties have a large backlog and a long delay, while others will have a matter before a jury in less than a year. The size of the backlog does not necessarily depend on the size of the county.

Convenience and personal preference. Does the attorney have more success in one county than in the other? Does he or she prefer an urban jury to a rural jury? What caliber of jurors does each county have? Is a particular county convenient for attorneys, clients, and witnesses, especially doctors? Such considerations are important, but an attorney must never choose venue solely for convenience. Home is not always the best place to sue or be sued. The attorney may have political enemies or represent an unpopular cause; the client may have recently been arrested or involved in a dubious enterprise; either the attorney or the client may generally be disliked. See §5.41 of CIVIL PRACTICE: OPENING THE CASE for change of venue due to prejudice of inhabitants.

These are a few of the factors to consider. The big thing to remember is that choice of venue should never be made without careful thought.

For more information about business law, see CIVIL PRACTICE: OPENING THE CASE 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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