I'm sure many of you woke up this morning with a burning
I mean, do they really?
You hear a lot about them, but has anyone actually seen one in real life?
Luckily, in resolving a forum selection clause dispute, Judge Cortinas has arrived just in time with the definitive answer:
There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appellee failed to establish that enforcement would be unreasonable since the designated forum – Illinois – does not result in Appellee’s having “no forum at all.”Hmm, but maybe Judge Leesfield was thinking about something other than the theoretical existence of the Illinois judicial system in ruling as she did:
Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida.Ahh, the old "scrivener's error"!
Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of "cutting and pasting" comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½"-wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_and_paste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.Ok, aside from the digression into the origins of "cutting and pasting" (which as a history buff I like!), what do you think of this strict application as a matter of policy?
Should there be no exceptions for screwing up the text of a document?
What if -- God forbid -- the parties had to litigate in a barren wasteland, like, say, Oklahoma?
(Do Oklahoma courts exist -- stay tuned for next week!)