A state’s legal standard for determining fault is a key factor in determining whether to file a motion to apply foreign law or a motion to dismiss under the doctrine of forum non conveniens. In December’s Illinois Bar Journal, Cameron Turner and Sean Phillips examine such choices regarding asbestos cases in Illinois. Illinois is a well-known epicenter of asbestos litigation, having earned a reputation for allowing cases unconnected to the state to proceed through its system. Onlookers and clients, particularly those new to asbestos litigation and unaware of its broader scope, often express disbelief and frustration at the legitimacy of such a system. Such reactions are fair, and related questions certainly are valid. Illinois does, after all, have statutes in place that allow for the transfer of cases to appropriate forums when any particular forum is improper or inconvenient. It also seems logical, on its face, to lessen the impact of sometimes-harsh Illinois law by looking to the law of a state with a stronger connection to the case when that state's law is more favorable. This rings true even if a defendant chooses to forgo pursuing a forum non conveniens argument.

Yet, despite the availability of mechanisms to lessen the impact of Illinois law, forum non conveniens and foreign law motions are seldom argued in Illinois—particularly in Madison County, the forum where these issues most commonly appear. What accounts for such a bold departure from conventional wisdom? In examining practical considerations for defendants and plaintiffs in considering forum and foreign law motions in Illinois venues, Turner and Phillips conclude that this “conventional wisdom” may be a fallacy.

Read more in the December issue of the Illinois Bar Journal.