What is “Forum-Shopping?”

This is the act of a plaintiff seeking the best court to bring an action in to maximize the chance of victory.  For example, in patent infringement cases, plaintiffs, on average, tend to file in the Eastern District of Texas because of the belief that this forum is best for patent owners – e.g., damages, invalidity challenges, etc.   Below is a heat map for patent infringement filings in 2010.

Each forum, or court, may apply a different law or interpretation of the law, opposed to another.  The plaintiff, who seeks to maximize the probability of winning, often selects the court where the law is on their side.   The process that the plaintiff’s lawyer uses is called “backward induction.”  
A lawyer, using this backward induction, essentially creates a decision tree for each of the available forums and looks to each forum to see which law is applicable and other consideration – statute of limitations, procedural issues (e.g., the granting of stays, motions to dismiss, summary judgment), the strength the opposing party might have with counterclaims and defenses (e.g., substantive law), and possibly the worst case scenario (attorney fees, if the case is deemed frivolous).

Then, once this detailed analysis is completed, the lawyer will assess the overall risks and probability of prevailing for each forum to select the most optimal for the client. 

Additional reading:

https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-texas-its-not-bbq
https://patentlyo.com/patent/2010/05/patent-litigation-forum-shopping.html

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