The Judicial Conference seems to be saying: Judge shopping is bad, but there’s nothing we can really do about it.
If you’ve been paying attention to the legal system recently, you’ve probably heard the term “forum shopping.” It’s usually invoked to criticize plaintiffs who file cases in places that don’t have a strong connection to the dispute: say, a lawsuitBut defendants forum shop too. By raising objections under technical doctrines of jurisdiction and venue, they can try to move cases to courts where they’ll have a better chance of winning.
Hold on. Did we just say that a third of all patent cases are filed in two small cities in Texas? We did, and it’s true.shop. Specifically, all cases filed in Waco were, before a recent change, assigned to a single judge—Alan Albright. Ditto for Marshall, where 90 percent of cases went to Judge Rodney Gilstrap.Judges like Albright and Gilstrap have advertised to anyone who will listen that they want to bring patent cases to their courtrooms.
The Judicial Conference’s guidance document does encourage district courts to “avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge” in all civil cases, including patent cases. But again, that guidance isn’t binding. Basically, the Judicial Conference seems to be saying: Judge shopping is bad, district courts shouldn’t assign cases in ways that allow it, but there’s nothing we can really do about it. That’s an unfortunately toothless approach to a serious problem. It’s also a crabbed view of theAll that said, it’s encouraging that the conference has judge shopping in its sights. It’s possible future reform will come. And it should.
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