Capture the Flag: Winning With Forum Selection Clauses
By Jim Wagstaffe
James (Jim) M. Wagstaffe handles a diverse range of litigation matters. His practice focuses on complex litigation, professional and governmental representation, will and trust disputes, legal ethics, and First Amendment matters. Jim is also the author of The Wagstaffe Group Practice Guide: Federal Civil Procedure Before Trial, published by Lexis Nexis.
So much of litigation can be territorial. After all, where an action is commenced (or transferred) can have massive impacts on who wins the case (e.g., assigned judge, governing procedural rules, jury pools, geographic conveniences, etc.). Thus, well-crafted and enforceable forum selection clauses play a vital role in winning the "capture the flag" aspect of modern litigation disputes.
As a trial attorney, Civil Procedure professor and practice guide author, I am keenly aware that forum selection clauses involve one of the most dynamic areas in all of civil litigation. Mastering the explosion of recent case law and related statutory developments addressing forum selection clauses necessarily includes awareness of the "hot issues" in this area, including: (1) disputes about scope, (2) validity and enforceability, (3) impact of clause-cancelling state public policies, (4) applicability to non-signatories, (5) impact on removal rights, and (6) how best to draft and enforce such provisions.