                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2009-3231

                               HENRY J. MUMME, JR.,

                                                            Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                            Respondent.

                ----------------------------------------

                                      2009-3233

                               HENRY J. MUMME, JR.,

                                                            Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                            Respondent.

      Henry J. Mumme, Jr., of Amherst, New York, pro se.

       Patryk J. Drescher, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Mark A. Melnick, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2009-3231

                                 HENRY J. MUMME, JR.,

                                                               Petitioner,

                                                v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.

Petition for review of the Merit Systems Protection Board in AT4324080878-I-1.

                      --------------------------------------------------------

                                          2009-3233

                                 HENRY J. MUMME, JR.,

                                                               Petitioner,

                                                v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.

Petition for review of the Merit Systems Protection Board in NY4324080358-I-1.

                           __________________________

                            DECIDED: December 9, 2009
                           __________________________

Before RADER, ARCHER, and LINN, Circuit Judges.

PER CURIAM.
       Henry J. Mumme, Jr., (“Mumme”) seeks review of two decisions of the Merit

Systems Protection Board (“Board”), each of which denied his request for corrective

action based on his claim that the Department of Veterans Affairs (“agency”) violated

the Uniformed Services and Reemployment Rights Act of 1994 (“USERRA”) when it

declined to select him for a position within the agency. Because substantial evidence

supports the Board’s determinations that Mumme’s status as a veteran was not a

substantial or motivating factor in his non-selection for these positions, we affirm.

                                     BACKGROUND

       Mumme is a veteran of the United States Marine Corps.              He applied for a

position as a Safety Engineer in Gainesville, Florida under vacancy announcement VZ-

101-743. That announcement was open from November 9, 2005 to November 18,

2005. The agency never filled the position that Mumme applied for under vacancy

announcement VZ-101-743. Instead, the agency filled the position under an earlier

announcement, 05-450-BB, a vacancy for which Mumme did not apply. This earlier

announcement was open from October 20, 2005 to November 9, 2005. The agency

compiled a list of eligible candidates that had responded to the first vacancy

announcement, 05-450-BB, and conducted interviews with those candidates.                One

month later, on January 30, 2006, the agency compiled a list of eligible candidates that

had responded to the second vacancy announcement, VZ-101-743. On that same day,

January 30, 2006, the position was filled by a candidate whose name was on the first

list. Mumme filed a challenge with the Board alleging that his non-selection was a result

of discrimination under USERRA. On January 6, 2009, the Board denied Mumme’s

appeal, finding no evidence that the selecting official, Mr. Frank Campbell, ever saw or

2009-3231, 2009-3233                         2
knew about the second list when he selected a candidate from the first list on January

30, 2006. Mumme v. Dep’t of Veterans Affairs, No. AT-4324-08-0878-I-1, slip op. 10

(M.S.P.B. Jan. 6, 2009). The Board thus concluded that Mumme had failed to satisfy

his burden of showing that his status as a veteran was a substantial or motivating factor

in the agency’s decision not to select him for the Safety Engineer position. The Board’s

decision became final on May 15, 2009. Mumme timely appealed. His appeal of that

decision is docketed in this court as Appeal No. 2009-3231.

      Mumme also applied for a position as a Registered Nurse in Buffalo, New York

under vacancy announcement 528-07-068.          His only nursing experience was in a

previous part-time position in which he worked eight hours per week during a three

month period. In his interview, Mumme acknowledged that he gets overwhelmed in

nursing, that it took him six attempts to pass the state licensing exam, and that it will

take him time to get oriented in the new position. When he was not selected for this

position, he filed a challenge with the Board alleging that his non-selection was a

violation of USERRA. On December 19, 2008, the Board denied his appeal, finding that

the other candidates who were selected for this position all had much more experience

than Mumme, and that one of them was a military veteran.           Mumme v. Dep’t of

Veterans Affairs, No. NY-4324-08-0358-I-1, slip op. 6-7 (M.S.P.B. Dec. 19, 2008).

Mumme’s status as a veteran was therefore determined not to have been a substantial

or motivating factor in his non-selection. The Board’s decision became final on May 18,

2009. Mumme timely appealed. His appeal of that decision is docketed in this court as

Appeal No. 2009-3233.

      We have jurisdiction over both appeals under 28 U.S.C. § 1295(a)(9) (2006).

2009-3231, 2009-3233                       3
                                       DISCUSSION

      Mumme asserts that this court should conduct a “de novo” review of the Board’s

decisions. In his informal reply brief, Mumme states that it is “common knowledge” that

this court has “discretion” to “sua sponte” review his case de novo. Informal Reply Br.

2. This is incorrect. Our standard of review is prescribed by statute. See 5 U.S.C.

§ 7703(c).   Under that provision, we must affirm the Board’s decision unless it is

“arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law,

rule or regulation; or unsupported by substantial evidence.” Kirkendall v. Dep’t of Army,

573 F.3d 1318, 1321 (Fed. Cir. 2009).

      In order to prevail on his claim of discrimination under USERRA, Mumme must

show by a preponderance of the evidence that his prior military service or his status as

a former military service member was a “substantial or motivating factor” in the agency’s

decision not to select him for the position. Sheehan v. Dep’t of Navy, 240 F.3d 1009,

1013 (Fed. Cir. 2001). The Board concluded that Mumme had failed to discharge this

burden in both of his appeals.

      As for the Security Engineer position, Mumme argues that the candidate who

was   ultimately   selected   for   this   position   had   responded   to   both   vacancy

announcements, not just to the earlier announcement. Thus, Mumme believes that he

was passed over for a candidate who was on the same list of eligible candidates as he.

But Mumme does not dispute that the selected candidate did in fact apply under the first

announcement, and that the selecting official made his selection only from the list of

candidates who replied to the first announcement. The fact that the selected candidate

also responded to the later announcement is irrelevant, because there is no evidence

2009-3231, 2009-3233                          4
that this fact would have disqualified this candidate from consideration under the first

announcement.     By contrast, Mumme applied only under the later announcement.

Because the vacancy had already been filled before the second list of eligible

candidates had ever been evaluated by the selecting official, Mr. Frank Campbell, the

Board’s finding that Mumme’s military service was not a factor in his non-selection is

supported by substantial evidence.

      As for the Registered Nurse position, Mumme argues that he applied for an

entry-level position and should have been compared to other entry-level applicants

rather than to those who applied for what he calls “specialty” positions.         But the

evidence shows that all of the part-time nursing positions that were vacant at the time

were in one of the five services that Mumme characterizes as “specialized.” The Board

found no evidence that other non-specialized, entry-level positions existed at the time of

Mumme’s application. Moreover, Mumme does not dispute that one of the selected

candidates was himself a military veteran, a fact that tends to refute the notion that the

agency was biased against Mumme’s military status.

      Because the Board’s decisions are supported by substantial evidence, we affirm.

2009-3231, 2009-3233                        5


                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

DAVID PIPKIN,                                                                       FILED
Claimant Below, Petitioner                                                       October 10, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.)   No. 16-1197 (BOR Appeal No. 2051386)                                      OF WEST VIRGINIA

                    (Claim No. 2013021606)

BUCHANAN PUMP & SUPPLY COMPANY INC.,
Employer Below, Respondent

                              MEMORANDUM DECISION
       Petitioner David Pipkin, by Stephen New and Amanda Taylor, his attorneys, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Buchanan Pump and
Supply Company, Inc., by Daniel Murdock, its attorney, filed a timely response.

        The issue on appeal is the reopening of the claim for temporary total disability benefits.
On October 15, 2013, the claims administrator denied Mr. Pipkin’s request to reopen the claim.
The Office of Judges affirmed the claims administrator in its May 26, 2016, Order. The Order
was affirmed by the Board of Review on November 21, 2016. The Court has carefully reviewed
the records, written arguments, and appendices contained in the briefs, and the case is mature for
consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Pipkin injured his left shoulder when he felt something “pop” on November 19,
2011. On November 29, 2011, a left shoulder MRI revealed a focal distal supraspinatus tear,
tendinopathy of the subscapularis, thickening of the middle and inferior glenohumeral ligaments,
and a subdeltoid bursal effusion. On January 5, 2012, Prakash Puranik, M.D., diagnosed a left
shoulder rotator cuff tear, impingement syndrome, and bursitis. On February 21, 2012, Dr.
Puranik performed a left shoulder arthroscopy and repaired a left rotator cuff tear. On June 9,
2012, a left shoulder MRI revealed a tear of the superior glenoid labrum and a partial thickness
rotator cuff tear.

                                                1
        Paul Bachwitt, M.D., performed an independent medical evaluation on July 24, 2012, and
opined Mr. Pipkin needed an additional surgery, followed by a course of physical therapy before
he would reach maximum medical improvement. On September 11, 2012, Dr. Puranik performed
a second arthroscopy including a repair of the left shoulder SLAP lesion and debridement of an
incomplete left rotator cuff tear. On March 5, 2013, Dr. Bachwitt issued an addendum to his
report in which he opined Mr. Pipkin had reached maximum medical improvement because he
completed the prescribed physical therapy. He assessed 4% permanent partial disability and
opined that Mr. Pipkin was no longer temporarily totally disabled. On March 28, 2013, Dr.
Puranik testified via deposition that he referred Mr. Pipkin to a pain management clinic because
of ongoing pain following the two left shoulder arthroscopies.

        Mr. Pipkin’s May 15, 2013, request to reopen his claim for the payment of temporary
total disability benefits was denied by the claims administrator on October 2, 2013. On
September 2, 2014, the Office of Judges reversed the denial of the reopening and granted
payment of temporary total disability benefits through December 4, 2013. On October 10, 2014,
the employer filed a motion with the Board of Review to stay the September 26, 2014, Office of
Judges’ Order and remand the claim to the Office of Judges for further development of the
record. The employer argues that at the time Mr. Pipkin protested the October 2, 2013, decision
of the claims administrator, it possessed substantial evidence that he was committing workers’
compensation fraud but was unable to submit that evidence to the Office of Judges because
doing so would have compromised the State Police investigation into the alleged fraud.
Additionally, Mr. Pipkin had been arrested for three felony counts relating to the sale of
prescription narcotics, and the employer provided a copy of the criminal complaint against Mr.
Pipkin in support of its motion.1

        On December 7, 2015, the Office of Judges reversed the October 2, 2013, decision of the
claims administrator and reopened the claim for temporary total disability benefits through
December 4, 2013. On January 6, 2016, the employer requested the Office of Judges reconsider
its December 7, 2015, decision because weight and consideration were due the criminal charges
that were brought after the period of temporary total disability. On May 26, 2016, the Office of
Judges reversed its earlier decision, and affirmed the claims administrator’s October 2, 2013,
denial of the request to reopen the claim.

        The Office of Judges noted that Mr. Pipkin received temporary total disability benefits
from February 19, 2012, through March 5, 2013, at which time the benefits were suspended
based on Dr. Bachwitt’s opinion that Mr. Pipkin had reached maximum medical improvement.
Prior Office of Judges’ decisions had granted temporary total disability benefits based on the fill
in-the-blank forms completed by Dr. Puranik. It then found the credibility of the claimant based
upon the record of criminal charges, as well as his treatment at two pain clinics where he

1
  In David Pipkin v. Buchanan Pump & Supply Company, Inc., (15-0177, W.Va. Supreme Court
of Appeals)(memorandum decision), we affirmed the Board of Review’s consideration of a
criminal complaint against Mr. Pipkin submitted by the employer in support of it motion to stay
an Office of Judges’ Order and their remand to the Office of Judges for further development of
the evidentiary record. This case is before us after the remand.
                                                 2
obtained large amounts of oxycodone, should be given more weight based on a closer
examination of the medical records and factual records.

        Dr. Puranik’s opinion regarding the maximum medical improvement status of Mr. Pipkin,
as well as the referral to a pain clinic, was based on the assertions of Mr. Pipkin that he had
chronic pain. The Office of Judges noted Mr. Pipkin’s last surgery was in September of 2012. It
then found, combining the factual and medical evidence, that the inordinate amount of
oxycodone which Mr. Pipkin was prescribed, as well as charges for selling oxycodone, could
support pain seeking behavior during the period of time in which he was treated by Dr. Puranik
after the second surgery. Therefore, the Office of Judges found the opinion of Dr. Bachwitt
regarding Mr. Pipkin’s maximum medical improvement status to be more credible. It also found
that Mr. Pipkin had not demonstrated that he was entitled to additional temporary total disability
benefits and affirmed the claims administrator’s decision.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed the Office of Judges’ Order on November 21, 2016. After review, we agree
with the reasoning and conclusions of the Office of Judges, as affirmed by the Board of Review.
Mr. Pipkin’s testimony that he continued to have pain following his surgery and physical therapy
is not credible.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                Affirmed.

ISSUED: October 10, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

                                                3


140 Ill. App.3d 969 (1986)
489 N.E.2d 429
THERESA BOSTON et al., Plaintiffs-Appellees,
v.
ROCKFORD MEMORIAL HOSPITAL et al., Defendants-Appellants (American Hospital Supply Corporation, Defendant).  DESSIE WILLIAMS, Plaintiff-Appellee,
v.
ROCKFORD MEMORIAL HOSPITAL et al., Defendants-Appellants (Fred Nathan, M.D., et al., Defendants).
Nos. 84-1973, 84-2138, 84-2626 cons.
Illinois Appellate Court  First District (2nd Division).
Opinion filed February 4, 1986.
*970 Lord, Bissell & Brook, of Chicago (Williams P. Dorr, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellant F.N. Suma.
French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French and Russell P. Veldenz, of counsel), for appellant Rockford Memorial Hospital.
McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Sara E. Cook, of counsel), for appellant J.T. Posey Corporation.
Goldberg & Goldberg, of Chicago (John B. Schwartz and Annelie D. Palmer, of counsel), for appellees.
Reversed and remanded.
JUSTICE STAMOS delivered the opinion of the court:
Three petitions have been consolidated for this court's opinion. These petitions arise from two circuit court cases. In each case, the defendants' motions to dismiss the action on the grounds of forum non conveniens were denied by the trial court. Certain defendants in each case sought review of the trial court's ruling pursuant to Supreme Court Rule 306(a)(l)(ii) (87 Ill.2d R. 306(a)(l)(ii)). Exercising its discretion under the rule, this court granted the petitions.
On April 2, 1984, plaintiffs Theresa and Walter Boston (the Bostons), filed their complaint at law naming Rockford Memorial Hospital (Rockford Memorial), F. Suma, M.D. (Suma) and the Posey Corporation as defendants. A first amended complaint added American Hospital Supply Corporation (American) as a defendant, and a second amended complaint named J.T. Posey (Posey) as an additional defendant. The Posey Corporation was later dismissed from the lawsuit as an erroneously named defendant.
The Bostons alleged that Theresa Boston was treated at Rockford Memorial in Rockford for a total left knee arthoplasty. During the treatment a leather cuff restraint was placed on her left foot, allegedly causing a full thickness pressure ulcer which required surgery. Theresa Boston alleged medical malpractice claims against Rockford Memorial and Suma and product liability claims against American and Posey. Walter Boston alleged a consortium count against all defendants.
Rockford Memorial moved on May 3, 1984, to transfer venue to Winnebago County. Suma moved on June 1, 1984, to transfer venue to Winnebago County. There, they asserted, the cause of action arose, the plaintiffs reside, Rockford Memorial is located and Suma resides and practices. The motions established that all care and treatment of *971 Theresa Boston occurred in Winnebago County and was provided by hospital personnel and physicians who live and work in a county other than Cook. While Posey Corporation may have had offices in Cook County, no actions or omissions alleged in the complaint took place in Cook and all witnesses and material facts for the presentation of evidence were in Winnebago County. The Bostons responded that American and Posey were doing business in Cook County and that plaintiffs should be allowed to exercise their choice of forum because the factors articulated in Torres v. Walsh (1983), 98 Ill.2d 338, 456 N.E.2d 601, did not strongly favor the defendants. The trial court denied the defendants' motions.
Posey later also moved to transfer venue to Winnebago County, repeating many of the same matters demonstrated by Rockford Memorial's and Suma's motions. Additionally, Posey established that the individuals involved in treatment of plaintiff's ankle included five physicians, all of whom practiced in Winnebago County. Posey also demonstrated by affidavit filed with the motion that it is a California corporation whose operations are centralized in California, and that its only facility in Illinois is a Chicago warehouse used as a shipping depot and employing only clerical personnel. The trial court denied the motion to transfer venue.
On January 19, 1984, plaintiff Dessie Williams filed her complaint at law naming Dr. Nathan, Dr. Krohm, the Rockford Orthopedic Associates, Ltd. (Associates), Rockford Memorial, and American as defendants. She alleged that on January 20, 1982, Dr. Nathan treated her fractured left humerus and that, following surgery, she had neurological damage to her left arm, hand, wrist and fingers. She alleged medical malpractice claims against the defendant doctors, Associates and Rockford Memorial. She alleged product liability claims against American.
On May 3, 1984, defendants Rockford Memorial and Krohm moved to transfer venue to Winnebago County on the grounds of forum non conveniens. Their motions established that Krohm resided and worked only in McHenry County, that defendants Nathan and Associates were located only in Winnebago County and that plaintiff resided in Winnebago County. Rockford Memorial and Krohm asserted that all medical treatment alleged in the complaint took place in Rockford Memorial and was provided by hospital personnel and physicians who live and work in a county other than Cook. Nothing referred to in plaintiff's complaint took place in Cook County and no actions or omissions alleged in the complaint took place in Cook, although American was served there. The Krohm motion was supported by affidavit *972 and by a memorandum of American's. Williams responded that American was a resident of Cook County and that the factors set forth in Torres did not strongly favor defendants. After hearing oral arguments on the matter, the trial court denied defendants' motions, finding the factors to be weighed under the forum non conveniens rationale did not strongly favor the defendants.
Before discussing the merits of the case, we address the Boston's motion to strike from defendant Posey's brief an appendix containing statistics of the cases pending and disposed of in Cook and Winnebago Counties in 1983. The information is excerpted from the 1983 report prepared by the Director of the Administrative Office of the Illinois Courts. The Bostons contend that since the appendix was neither filed in the trial court nor incorporated by reference in the trial court's order denying defendants' motions to transfer venue, it is matter dehors the record of which this court may not take notice.
 1 However, an appellate court may take judicial notice of matters not previously presented to the trial court when the matters are capable of instant and unquestionable demonstration. (May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill.2d 153, 159, 355 N.E.2d 7.) Our supreme court has held that the condition of a circuit court docket is "not a fact difficult of ascertainment and [is] a matter of which the circuit court could properly take judicial notice. The pertinent reports are on file in the office of the Court Administrator * * *." (Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill.2d 1, 6, 273 N.E.2d 353, 356.) Therefore, we deny the Bostons' motion to strike and take judicial notice of the appendix and its contents.
 2 The primary issue to be considered is whether the trial court abused its discretion when it denied the defendants' motions to transfer venue based on the doctrine of forum non conveniens. Defendants contend that the central purpose of the doctrine is to assure the convenience of the litigants and that the sum of factors to be evaluated in a forum non conveniens inquiry here strongly weighs in favor of transfer to Winnebago County. Indeed, under forum non conveniens a court may decline to exercise jurisdiction over a case properly before it whenever another forum can better serve the convenience of the litigants and promote the ends of justice. (Horn v. Rincker (1981), 84 Ill.2d 139, 149, 417 N.E.2d 1329.) The inquiry therefore centers upon which of multiple available forums is most convenient under the facts of the case. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 117, 427 N.E.2d 111.) Under Torres v. Walsh (1983), 98 Ill.2d 338, 456 N.E.2d 601, which made the principles of interstate forum *973 non conveniens applicable to intrastate transfers, convenience is measured by considering the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. In an interstate context, our supreme court has added as a factor to be weighed in considering the motion a defendant's delay in asking the circuit court to decline jurisdiction on the basis of forum non conveniens. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill.2d 135, 146, 478 N.E.2d 384.) If these factors strongly favor the defendant, the trial court has the authority to order the case to a more appropriate forum (Torres v. Walsh (1983), 98 Ill.2d 338, 351, 456 N.E.2d 601) and denying defendant's motion will constitute an abuse of discretion reversible on review. Stein v. Volkswagen of America, Inc. (1985), 135 Ill. App.3d 127, 132, 481 N.E.2d 1022; DeVries v. Bankers Life Co. (1984), 128 Ill. App.3d 647, 655, 471 N.E.2d 230.
Plaintiffs argue that the trial court's ruling should not be disturbed because their choice of forum should be respected unless highly exceptional circumstances warrant "the extraordinary procedure" of a change of venue, that defendants have failed to show such circumstances and that Cook County is an appropriate forum because American and Posey do business there. Although the Torres court stated that the decision of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L.Ed. 1055, 67 S.Ct. 839, recognized that the doctrine of forum non conveniens should be exercised only in exceptional circumstances (Torres v. Walsh (1983), 98 Ill.2d 338, 345, 456 N.E.2d 601), we do not find that plaintiff's hyperbole reflects either the approach of Torres or current applications of the doctrine. The many factors enunciated in Torres were not intended to be barriers to a defendant's invocation of forum non conveniens, but instead, encourage thorough "considerations of fundamental fairness and * * * effective judicial administration." (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 N.E.2d 349, 96 S.Ct. 1411.) The factors promote the purpose of the doctrine, which is to avoid litigation in an unduly inconvenient forum. (Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 377, 444 N.E.2d 157.) Thus, we do not believe that exceptional circumstances were intended to be extraordinarily difficult for a defendant to establish. This is not to say that a plaintiff's right to select a forum should be disturbed if the balance of factors does not strongly favor defendant. But a plaintiff's choice of forum is not absolute and is given less deference when, as here, his choice is not his home forum. *974 (Foster v. Chicago & Northwestern Transportation Co. (1984), 102 Ill.2d 378, 383, 466 N.E.2d 198; W.R. Grace & Co. v. Becker Industries, Inc. (1984), 128 Ill. App.3d 215, 222, 470 N.E.2d 577.) Plaintiffs take a calculated risk of reversal when they pursue a foreign forum in the face of a motion to dismiss or transfer. Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 86, 463 N.E.2d 792.
 3 Finally, we are not persuaded by plaintiffs' contention that there is a significant relationship between the litigation and Cook County because American and Posey do business in that forum. The fact that a defendant may be doing business in the forum is not dispositive in determining a motion to dismiss based on forum non conveniens. (Moore v. Chicago & Northwestern Transportation Co. (1983), 99 Ill.2d 73, 79, 457 N.E.2d 417; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 372, 456 N.E.2d 98; Torrijas v. Midwest Steel Erection Co. (1984), 130 Ill. App.3d 788, 793, 474 N.E.2d 1250.) If it were, the defendant would be subject to suit in a forum regardless of the inconvenience. (Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 377, 444 N.E.2d 157.) While the activities in Cook County constitute a basis for jurisdiction and venue, the doctrine requires this court to look beyond the criteria of venue when it evaluates the relative convenience of each available competing forum. Foster v. Chicago & Northwestern Transportation Co. (1984), 102 Ill.2d 378, 384, 466 N.E.2d 198.
 4 Applying the factors in Torres, we find that the trial court abused its discretion in denying defendants' motions to transfer. The record reflects that the only connection between this litigation and Cook County is that two of the defendants, American and Posey, have business activities there. An analysis of the relevant factors strongly favors defendants' choice of forum, while no factors favor plaintiffs' choice.
First, as plaintiffs' home forum and the location where the causes of action arose, Winnebago County is an available alternate forum. Second, access to sources of proof strongly favors defendants, since the medical records relevant to the malpractice claims and the documents prepared by the physicians, nurses and health professionals practicing in Rockford and in Rockford Memorial relevant to the products liability claims, are located in Winnebago County. While the plaintiffs argue that the evidence in Winnebago County is easily accessible and easily may be carried to Cook County, there appears to be only one piece of evidence, the retractor used on Williams, located in Cook. Third, all of the occurrence witnesses and subsequent treating *975 medical personnel reside in or near Winnebago County and are most conveniently accessible there. To adequately defend these actions, defendants must seek knowledge of plaintiffs' pre-existing medical conditions, knowledge of each treating doctor concerning the allegedly defective devices and their uses with plaintiffs, the nature of the medical treatment given and the nature of the injuries allegedly incurred. Since nonparty witnesses cannot be compelled to appear for depositions outside the county of their residence or business (87 Ill.2d R. 203), counsel will have to travel to Rockford for depositions. Also, trial testimony of medical personnel will likely be more difficult to arrange in light of the commuting time to Cook County from Rockford. Although plaintiffs minimize the three-hour round trip drive from Chicago to Rockford, they have not suggested a single witness from Cook County who might be called. Assuming, however, that these witnesses would be American and Posey employees, they could be compelled to appear in Winnebago County.
Fourth, plaintiffs' suggestion that they would receive a more fair trial in Cook County because there would be less bias in a larger jury pool is totally unfounded. Since there is no reason to believe plaintiffs would be prejudiced in submitting to the decision of a Winnebago County jury, this is a neutral factor. Fifth, the crowded condition of the Cook County docket strongly favors transfer of the litigation to Winnebago County. Judicial notice has frequently been taken of the crowded condition of the dockets of the circuit court of Cook County. (Moore v. Chicago & Northwestern Transportation Co. (1983), 99 Ill.2d 73, 81, 457 N.E.2d 417; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 375, 444 N.E.2d 157; Walker v. Iowa Marine Repair Corp. (1985), 132 Ill. App.3d 621, 631, 477 N.E.2d 1335; DeVries v. Bankers Life Co. (1984), 128 Ill. App.3d 647, 654, 471 N.E.2d 230.) Statistics prepared by the Administrative Office of the Illinois Courts indicate that Winnebago County is less congested. Moreover, the citizens of Cook County do not have an interest in deciding this lawsuit which arose from an occurrence in Winnebago County, and they should not have to bear the time and financial burden of deciding the matter. (See Torrijas v. Midwest Steel Erection Co. (1984), 130 Ill. App.3d 788, 794, 474 N.E.2d 1250.) The inconvenience to defendants to defend this action in Cook County measured against the convenience of plaintiffs in choosing to litigate in a foreign forum strongly favors transfer to Winnebago County. Finally, we note that defendants did not delay bringing their petitions for transfer, so that, if the Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill.2d 135, 478 N.E.2d 384, factor applies to intrastate transfer, it is here a neutral factor.
*976 Therefore, we find that the trial court abused its discretion in denying defendant's motion to transfer, and we reverse that order. We remand this cause to the trial court with an instruction to order a transfer to Winnebago County.
Reversed and remanded.
BILANDIC, P.J., and SCARIANO, J., concur.


72 F.3d 414
Kirk MITZEL;  Janet Mitzel, h/wv.WESTINGHOUSE ELECTRIC CORPORATION;  Dravo Corporation;  DickCorporation;  Cortec Industries, Inc., t/a, d/b/a InlandBuildings;  Davy McKee Corporation, t/a, d/b/a Davy Dravo;Dravo Engineering Companies, Inc.;  Cortec Industries, Inc.,t/a, d/b/a Summit Buildings;  S.B. Acquisition Company, t/a,d/b/a Summit Buildings,DICK CORPORATION;  Dravo Corporation, Third-Party Plaintiffs,v.A.C. DELLOVADE, INC.;  Davy McKee Corporation, t/a, d/b/aDavy Dravo, Third-Party Defendants,Kirk Mitzel and Janet Mitzel, by and with their Attorneys, ADragon Associates, Appellants.
No. 94-5666
United States Court of Appeals,Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a)July 17, 1995.
Decided Dec. 29, 1995.

Arlin M. Adams, Schnader, Harrison, Segal & Lewis, Philadelphia, PA (Kaethe B. Schumacher, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, Albert Dragon, Litvin, Blumber, Matusow & Young, Philadelphia, PA, of counsel), for Appellants.
Before:  SLOVITER, Chief Judge, SCIRICA, Circuit Judge, and AMBROSE, District Judge*.
OPINION OF THE COURT
SLOVITER, Chief Judge.

1
A Pennsylvania law firm, A Dragon Associates, and its clients, Kirk and Janet Mitzel, challenge the district court's application of the New Jersey State Court Contingency Fee Rule to a two-million-dollar settlement received by the Mitzels in a case Dragon filed for them in federal court in New Jersey.  They argue that the district court erred in applying New Jersey rather than Pennsylvania law, and, in the alternative, that even if the New Jersey rule is applicable, Dragon is entitled to an increased fee under the terms of the rule because of the extraordinary time and effort it devoted to this case.  We have jurisdiction under 28 U.S.C. Sec. 1291.  As none of the defendants have filed briefs, this matter is before us on appellants' brief only.  Although the appeal was filed on behalf of both Dragon and the Mitzels, we will treat only Dragon as the appellant.

I.

2
Kirk Mitzel was severely injured at a construction site in New Jersey when a steel beam on which he was working collapsed and fell 26 feet to the ground.  Mitzel and his wife, Janet, were Pennsylvania residents at the time and retained Dragon to pursue worker's compensation and personal injury claims on their behalf.  On July 26, 1990, the Mitzels signed a contingency fee agreement with Dragon in which the law firm agreed to represent them in return for 40% of any net recovery.  At some point after signing this agreement, but before the complaint was filed, the Mitzels moved to North Dakota.

3
Dragon filed a complaint on December 30, 1991 in the District Court of New Jersey based on diversity jurisdiction, naming as defendants the primary and general contractors and the companies that designed the equipment and materials involved in the accident.  Two attorneys from the firm were admitted pro hac vice to the District Court of New Jersey on May 18, 1992, pursuant to the district court's Local Rule 4(c).

4
Dragon asserts that during the following two-and-a-half years it invested over 5100 attorney hours in discovery, taking nineteen depositions, accumulating fifty-two expandable files of documents that are over twenty-two feet thick, arguing nearly twenty oral and written motions, reviewing hundreds of thousands of records, and consulting more than ten experts.  It also claims to have incurred considerable costs in travelling to Pittsburgh and Orlando to inspect documents.

5
Ultimately, in mid-1994 the defendants offered the Mitzels two million dollars, and Dragon volunteered to reduce its contingency fee from 40% to one-third in order to facilitate a settlement at this amount.  The Mitzels agreed and, on July 25, 1994, filed a motion with the district court asking it to confirm the settlement and approve the one-third counsel fee in the amount of $648,403.28.  The motion was referred to a magistrate judge, who instead recommended application of New Jersey Court Rule 1:21-7, and a counsel fee award of $435,181.47.  The district court adopted the magistrate's recommendation and denied plaintiffs' motion for reconsideration.  This appeal followed.

II.
A.
Choice of Law

6
New Jersey Court Rule 1:21-7(c), which sets a schedule of maximum limits on the contingency fees that New Jersey attorneys can collect in tort litigation, provides:

7
In any matter where a client's claim for damages is based upon the alleged tortious conduct of another, ... an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits:

8
(1) 33 1/3% on the first $250,000 recovered;

9
(2) 25% on the next $250,000 recovered;

10
(3) 20% on the next $500,000 recovered;  and

11
(4) on all amounts recovered in excess of the above by application for reasonable fee in accordance with the provisions of paragraph (f) hereof....

12
N.J. Court Rules, 1969, R. 1:21-7(c).  Paragraph (f), referred to in subparagraph (4) above, provides that "[i]f at the conclusion of a matter an attorney considers the fee permitted by paragraph (c) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances."   R. 1:21-7(f).

13
The New Jersey district court has incorporated New Jersey's contingency fee rule into its local rules through Local Rule 4(c), which provides that "[a] lawyer admitted pro hac vice [to the federal court] is deemed to have agreed to take no fee in any tort case in excess of the New Jersey State Court Contingency Fee Rule (N.J.Court Rules, 1969, R. 1:21-7 as amended)."

14
Dragon argues that the district court erred in holding that New Jersey law rather than Pennsylvania law was applicable to its decision as to the amount of the contingency fee.  Pennsylvania courts will uphold contingency fee agreements voluntarily entered into by the parties as long as they are not excessive and do not take "inequitable advantage of the payer."  Richette v. Solomon, 410 Pa. 6, 187 A.2d 910, 919 (1963).  A one-third contingency fee is not considered excessive, see id., and fees as high as 40% have been enforced by Pennsylvania courts.  See, e.g., Oliastro v. Borough of Ellwood City, 337 Pa.Super. 181, 486 A.2d 966 (Pa.Super.Ct.1984).  We apply plenary review to the district court's decision that New Jersey law is applicable here.  See Linan-Faye Constr.  Co. v. Housing Auth. of Camden, 49 F.3d 915, 919 (3d Cir.1995).

15
Dragon presents the choice as one between Pennsylvania and New Jersey law, but it has apparently failed to consider the possibility that under the rules established by Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny, an attorney's fee issue affecting the allocation of funds between attorney and client presented in a diversity case is a matter of procedure governed by the law of the forum.

16
Generally, the right of a party or an attorney to recover attorney's fees from another party in a diversity action is a matter of substantive state law.  See Alyeska Pipeline Serv.  Co. v. Wilderness Soc'y., 421 U.S. 240, 260 n. 31, 95 S.Ct. 1612, 1623 n. 30, 44 L.Ed.2d 141 (1975);  Abrams v. Lightolier Inc., 50 F.3d 1204, 1224 (3d Cir.1995);  Montgomery Ward & Co. v. Pacific Indem. Co., 557 F.2d 51, 55-58 (3d Cir.1977);  see also 1A James W. Moore et al., Moore's Federal Practice p O.309, at 3109-10 & n. 46 (2d ed. 1995).  In contrast, contingency fee agreements have been treated differently.

17
Contingency fee agreements apportion resources between plaintiffs and their counsel rather than plaintiffs and defendants, and therefore are collateral to the substantive merits of lawsuits in a way that awards of attorney's fees between parties are not.  Furthermore, because of the imbalance of power that may exist between client and attorney, we have held that "contingency fee agreements are of special concern to the courts," Dunn v. H.K. Porter Co., 602 F.2d 1105, 1108 (3d Cir.1979), and fall within a court's "supervisory power over the members of its bar," Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 738 (1973);  see Dunn, 602 F.2d at 1110 n. 8.

18
In Elder v. Metropolitan Freight Carriers, Inc., 543 F.2d 513 (3d Cir.1976), this court was faced with an attorney's challenge to a federal court's limitation of his contingency fee under facts strikingly similar to those before us.  Mrs. Elder, the widow of a New York resident killed in an accident in New Jersey, filed suit in New Jersey federal court seeking recovery under state tort law.  Id. at 515.   Both Mrs. Elder and her lawyer were residents of New York and they had signed a fee agreement there promising the attorney a one-third contingency fee.  The lawyer was admitted pro hac vice to the New Jersey district court, where the suit proceeded.  After some discovery, the parties agreed to a settlement.  Id.  The New York Surrogate Court approved distribution of the proceeds to the widow and children, and set the counsel fees pursuant to the one-third agreement, which would have led to a fee substantially in excess of the amount allowable under the New Jersey rule.  A proposed order for payment of the one-third fee was then presented for approval to the district court.  It declined to follow New York law and instead reduced the contingency fee under the formula set forth in New Jersey Court Rule 1:21-7, which was then, as now, incorporated into the district court's local rules.  Id. at 515-16.

19
Counsel appealed to this court, and we affirmed the district court's decision.  Id. at 517-19.   We rejected an argument, proffered by Dragon here as well, that we should apply the choice of law analysis of Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).  We reasoned as follows:  "Rules regulating contingent fees pertain to conduct of members of the bar, not to substantive law which determines the existence or parameters of a cause of action.  Such rules are designed to promote the efficient disposition of litigation and enhance the public's confidence in the bar."  Id. at 519.   After noting that federal courts have the power to prescribe requirements for admissions before them and to discipline attorneys who have been admitted to practice before them, we stated that "such rules are of deep concern to the court which promulgated them," and concluded "[w]hen local rules of a federal district court are questioned, it is doubtful that the choice of law doctrines of the forum state come into play."  Id.1

20
Under this reasoning, contingency fee agreements in diversity cases are to be treated as matters of procedure governed by federal law.  We nonetheless proceed to analyze the district court's choice of law decision, a step we also took in Elder.   We hold that, even assuming arguendo that the issue were a matter of state law under the Erie test, an application of New Jersey choice of law principles would mandate application of New Jersey law to the contingency fee agreement and thus lead to the same result.  See Elder, 543 F.2d at 519.

21
New Jersey law considers that matters relating to attorney's fees fall within the sphere of the state's "paramount concern with its courts," id. at 519.   The New Jersey view is clear and express:

22
It is a virtually axiomatic principle of conflicts of law that the procedural law of the forum applies even to causes of action governed by a different jurisdiction's substantive law....  Court rules regulating attorney fees are not only clearly procedural but have also expressly been so declared.

23
Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J.Super. 349, 565 A.2d 1113, 1120 (N.J.Super.Ct.App.Div.1989) (citations omitted), cert. denied, 121 N.J. 617, 583 A.2d 316 (1990);  see also State v. Otis Elevator Co., 12 N.J. 1, 95 A.2d 715, 717 (1953) ("From the outset in New Jersey, following English precedents, the allowance of costs and counsel fees had been uniformly considered by the courts of this state to be a matter of procedure rather than of substantive law.").

24
Accordingly, we hold that the district court did not err in applying New Jersey Court Rule 1:21-7 or its local federal court counterpart to the Mitzels' contingent fee agreement.

B.
Reasonableness of the Fee Awarded

25
Dragon contends that even if the district court was bound to follow the New Jersey contingency fee rule, it failed to award "reasonable" compensation.  Dragon recognizes that we review the district court's order in this respect only for an abuse of discretion.

26
Under Rule 1:21-7(f), a court may increase a contingency fee above the maximum limits in the rule on application by the attorney and written notice to the client.  The language of the rule makes the polestar "a reasonable fee in light of all the circumstances."   The New Jersey caselaw instructs that the attorney seeking an increased fee must demonstrate that

27
(1) the fee allowed under the rule is not reasonable compensation for the services actually rendered, and

28
(2) the case presented problems which required exceptional skills beyond that normally encountered in such cases or the case was unusually time consuming.

29
Wurtzel v. Werres, 201 N.J.Super. 544, 493 A.2d 611, 614 (N.J.Super.Ct.App.Div.), cert. denied, 102 N.J. 353, 508 A.2d 223 (1985);  accord Anderson v. Conley, 206 N.J.Super. 132, 501 A.2d 1057, 1066 (N.J.Super.Ct.Law Div.1985).

30
In considering Dragon's application for a one-third contingency fee, the magistrate judge distinguished earlier New Jersey cases that granted fees above those established by Rule 1:21-17(c) on the ground that those adjustments were made at a time when the Rule imposed a ten percent cap on judgments over $250,000.  See, e.g., Bambi v. Dr. O, 196 N.J.Super. 349, 482 A.2d 536, 538 (N.J.Super.Ct.Law Div.1984);  Burd v. Hackensack Hosp. Ass'n, 195 N.J.Super. 35, 477 A.2d 843, 844 (N.J.Super.Ct.Law Div.1984);  McNelis v. Cohen, 188 N.J.Super. 87, 455 A.2d 1166, 1168 (N.J.Super.Ct.Law Div.1982).  The magistrate judge deemed those cases of little precedent, particularly in light of the Rule's 1984 amendment increasing the percentages applicable and requiring counsel to make application for fees for recoveries above $1 million, R. 1:21-7(c)(4).

31
Based on Dragon's application, the magistrate judge recommended that Dragon be awarded twenty percent on the amount recovered over and above $1 million, explaining "[a]lthough the instant case did not present complex or novel legal issues, counsel vigorously prosecuted [it] on behalf of his clients, and dedicat[ed] a great deal of time to the matter, and secured a very good result."   Magistrate's Report and Recommendation at 4.  Thus the fee recommended by the magistrate judge was calculated as:  33 1/3% of the first $250,000 recovered, equaling $83,250;  25% of the next $250,000, equaling $62,500;  20% of the next $500,000, equaling $100,000;  and 20% of the remainder of $947,157.10, equaling $189,431.42, leading to a total of $435,181.42.

32
Dragon contends that this award was not sufficient to render the total fee "reasonable" and that the fee should have been increased to one-third of the entire net recovery.  It argues that the fee awarded is not reasonable compensation because it amounts to just $85 per attorney hour, out of which the firm must still pay overhead and operating expenses.  Dragon points to the magistrate judge's finding that counsel "vigorously prosecuted [the] case," and to letters from defense counsel in this case praising Dragon as "extremely competent," App. at 295, and as having done an "excellent job in putting together a difficult case."   App. at 172.  Dragon argues that the case was "unusually time consuming" as the firm devoted over 5100 attorney hours in extensive investigation and discovery.  Additionally, it points to the facts that the Mitzels agree to the increase and that Rule 1:21-7, which has not been changed since 1984, fails to account for inflation.  Substantially the same arguments were considered and rejected by the magistrate judge and the district court.

33
Taking at face value Dragon's assertions regarding time and effort expended on this case, we are not persuaded that the case was so unusual or time-consuming that we should disturb the district court's ruling.  The cases cited by Dragon in which one-third fees were allowed under Rule 1:21-7(f) involved considerably more extensive litigation than was involved here.  See Luchejko v. Membreno, 193 N.J.Super. 733, 475 A.2d 696, 697 (N.J.Super.Ct.Law Div.1983) (medical malpractice action involving a "number of difficult legal issues," as well as extensive discovery, pre-trial motions, a six-day trial, and post-trial motions);  Buckelew v. Grossbard, 189 N.J.Super. 584, 461 A.2d 590 (N.J.Super.Ct.Law Div.)  (medical malpractice action which was fully tried, appealed to appellate division and then to Supreme Court, and remanded for new trial, establishing new rule of law), aff'd, 192 N.J.Super. 188, 469 A.2d 518 (N.J.Super.Ct.App.Div.1983).

34
Dragon has not cited, nor has this court found, any New Jersey case reversing a trial court's finding that an increase above Rule 1:21-7's fee schedule was unwarranted.  Cf. Murphy v. Mooresville, 132 N.J.Super. 197, 333 A.2d 273, 275 (N.J.Super.Ct.App.Div.)  (reversing trial court's denial of fee increase where trial court had concluded that increase warranted but had denied it on basis of mistaken impression that rule precluded it), cert. denied, 68 N.J. 156, 343 A.2d 444 (1975).  On the other hand, in Bolle v. Community Memorial Hosp., 145 N.J.Super. 593, 368 A.2d 935, 937-38 (N.J.Super.Ct.App.Div.1976), cert. denied, 74 N.J. 275, 377 A.2d 679 (1977), the Appellate Division reversed a trial court's allowance of a fee above the schedule limits for the prosecution of a medical malpractice action despite the fact that it admittedly required "time, efforts and expertise" and involved not only discovery but a five-day trial and an appeal.  See also Wurtzel, 493 A.2d at 613-16 (reversing trial court's allowance of increased fee for prosecution of medical malpractice action involving extensive discovery and trial preparation, including consultation and preparation of multiple expert witnesses).

35
Dragon cites the opinion in Iskander v. Columbia Cement Co., 197 N.J.Super. 169, 484 A.2d 353 (N.J.Super.Ct.App.Div.1984), as precedent for the argument that the magistrate judge and the district judge should have considered the New Jersey rule's failure to keep pace with inflation and the reduced value of the dollar.  While Iskander cited inflation as one of several factors supporting a fee increase, the court explicitly cautioned against extending that holding beyond circumstances in which "an especially long period of time has elapsed between retainer and outcome, such as the eight years involved here."  Id. at 355.   Here, in contrast, the time between retainer by counsel and settlement was four years.  As the court stated in Iskander, the rule's failure to keep pace with inflation "can be solved only by the [New Jersey] Supreme Court in its rule-making capacity."  Id.

36
Thus, in the absence of other factors indicating that an increased fee is warranted, we cannot hold that the district court exceeded the considerable bounds of its discretion.

C.

37
Throughout its brief, Dragon has called to our attention the Mitzels' agreement to Dragon's receipt of the larger fee.  Indeed, the Mitzels filed the notice of appeal along with Dragon, challenging the district court's fee award, even though a reversal would mean that the Mitzels' recovery would be substantially reduced.  As the magistrate judge noted, if Dragon were awarded the fee it requested, it would receive $648,403.28, instead of the $435,181.47 awarded by the district court.

38
In this posture of the case, we are acutely uncomfortable with the lack of an opposing party on the appeal.  Undoubtedly, the defendants have no interest in how the settlement fund is divided between plaintiffs and their attorneys.  The only ones who stand to lose if Dragon gets the increased fee it is seeking are the Mitzels themselves, and the difference to them is $213,221.81, a considerable sum in any financial circumstances.  Any time the attorney's fee and the client's recovery come from a fixed fund of money, a "significant conflict of interest" arises between attorney and client.  See Report of the Third Circuit Task Force, Court Awarded Attorney's Fees at 36 (Oct. 8, 1985), reprinted in 108 F.R.D. 237 (1985);  see also In re General Motors Corp. Pick-Up Truck Fuel Tank Prods.  Liab. Litig., 55 F.3d 768, 820 (3d Cir.)  (discussing similar conflict in class action context), cert. denied, --- U.S. ----, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995).  But in this case, by actually petitioning the court for an increase in its fee, Dragon has brought that conflict into stark relief.

39
The premise behind Rule 1:21-7 is that attorneys and their clients do not have equal bargaining power, and that clients consequently need protection from the courts with respect to contingent fee agreements.  See Kingman v. Finnerty, 198 N.J.Super. 14, 486 A.2d 342, 344 (N.J.Super.Ct.App.Div.1985);  American Trial Lawyers Ass'n v. New Jersey Supreme Court, 126 N.J.Super. 577, 316 A.2d 19, 24-25 (N.J.Super.Ct.App.Div.1974), aff'd 66 N.J. 258, 330 A.2d 350 (N.J.Sup.Ct.1974).  Numerous provisions of the Rule are included to protect clients' interests.  Illustrative are those requiring the attorney to advise the client of the option to retain the attorney under an arrangement for compensation on the basis of the reasonable value of the services, 1:21-7(b), and mandating that any application for an increase be made on "written notice to the client," R. 1:21-7(f).

40
We have no reason to assume that there has been any overreaching by Dragon or that the Mitzels have not been fully advised of their rights.  We assume that the Mitzels joined in bringing this appeal out of a sense of gratitude to Dragon and a commitment to their earlier contractual fee arrangement.  Nonetheless, it is because there is an inherent conflict of interest in this situation, but see New Jersey Rules of Professional Conduct (RPC) 1.8(j)(2) (contingency fee contracts excepted from general prohibition on conflicts of interest between lawyer and client), that we have treated this appeal as if filed by Dragon alone.2

III.

41
For the reasons set forth above, we will affirm the order of the district court.

*
 Hon.  Donetta W. Ambrose, United States District Court for the Western District of Pennsylvania, sitting by designation

1
 We are not persuaded by Dragon's attempt to distinguish Elder on the ground that Elder involved a conflicting order from the New York Surrogate Court.  That fact was not relevant to, and certainly not dispositive of, this court's analysis of the conflict of law issue regarding the amount of the counsel fee

2
 We have no desire to enter into the debate about contingency fees currently underway in legal circles and particularly in New Jersey, where regulation of contingency fees is apparently the strictest in the country.  It has been reported that a New Jersey state senate committee has discussed proposals for abolition of contingency fees, whereas the 1994 report of the New Jersey Supreme Court Committee on Civil Practice, since tabled, recommended amending Rule 1:21-7 to increase the contingency fees allowed.  See generally Robert J. Kerekes, The Crisis of Congested Courts, 18 Seton Hall Legis.J. 489, 498 n. 39 (1994);  Martin L. Haines, Contingent Fee System in Need of Shakeup, N.J.L.J., Oct. 17, 1994, at 18;  Martin L. Haines, Time to Rethink Contingent Fee Caps, N.J.L.J., Sept. 19, 1994, at 17;  Tess Brennan, Proposed Contingency-Fee Revision Tabled, N.J.L.J., Apr. 11, 1994, at 8


914 F.2d 252
U.S.v.Robinson*
NO. 89-5701
United States Court of Appeals,Fifth Circuit.
AUG 30, 1990

1
Appeal From:  W.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


642 N.W.2d 48 (2002)
STATE of Minnesota, Appellant,
v.
Kathleen Mary MARSHALL, n/k/a Kathleen Mary Hartmon, Respondent.
No. C2-01-1309.
Court of Appeals of Minnesota.
April 2, 2002.
Review Denied May 28, 2002.
*50 Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for appellant.
Mark D. Nyvold, Attorney at Law, St. Paul, MN, for respondent.
*51 Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and HUSPENI, Judge.[*]

OPINION
LANSING, Judge.
Following indictment for first-degree murder in the 1982 death of her 18 month old son, Mary Hartmon brought a pretrial motion to suppress five statements made to police over the course of nearly 20 years, to sanction the Dakota County Attorney, to limit reference to a missing or destroyed 911 tape, and to dismiss the grand-jury indictment. The district court denied the motions to sanction the county attorney, to dismiss the indictment, and to suppress three of the statements. The court granted the motion to limit reference to the 911 tape and to suppress statements to law enforcement authorities made on January 16, 1985, and November 14, 2000. The state, in this pretrial appeal, challenges that part of the district court's order suppressing the 1985 and 2000 statements.

FACTS
Kathleen Hartmon's son, Jeremy, died in his crib on February 19, 1982. Jeremy was 18 months old and had a bronchitis infection that had required medical treatment before his death. On the day of his death, according to Hartmon, he fell asleep on the floor of their apartment and about noon she placed him in his crib.
At 1:09 p.m., Hartmon called 911 and reported that Jeremy was not breathing. Officers arrived at Hartmon's apartment at 1:12 p.m.; Jeremy was not breathing, had no pulse, and was bluish in color. The ambulance transported Jeremy to Divine Redeemer Hospital and then to Children's Hospital. Medical personnel were unable to resuscitate him. The original autopsy report indicated that Jeremy died from tracheobronchitis and bronchiolitis, natural causes. In 1984, another medical examiner, in response to police inquiries, changed the cause of death from natural to undetermined. In 2000, that medical examiner, responding to materials submitted by police, changed the cause of death to homicide.
The facts relevant to this appeal revolve around the statements made by Hartmon in January 1985 and November 2000. Hartmon made the January 1985 statements to a Dakota County Sheriff's lieutenant and a detective during a welfare fraud investigation. When Hartmon reported to the probation office, the lieutenant arrested Hartmon on a welfare-fraud warrant. The lieutenant read Hartmon her Miranda rights and asked her if she "wish[ed] to talk to us now?" Hartmon said, "No. I don't wish to say anything." The lieutenant and the detective told Hartmon that she was being arrested for welfare fraud and then began to question Hartmon about Jeremy's death. During the extended questioning, Hartmon denied any involvement in Jeremy's death. The detective told Hartmon that he would "keep bothering" her until she told the truth about Jeremy's death and that he did not believe her when she said she did not kill Jeremy.
The detective told the court that Hartmon, while being transported in a squad car to the Dakota County jail, confessed to killing Jeremy. Unlike the other two interviews that occurred on this day, no tape recording or transcript exists of this conversation. *52 At the Dakota County jail, the detective continued the questioning after he again read Hartmon her Miranda rights. During this questioning, Hartmon made statements indicating that she did not want Jeremy to suffer and that Jeremy may have been the source of discord between Hartmon and her husband.
On November 14, 2000, two Minnesota Bureau of Criminal Apprehension (BCA) agents arrived at Hartmon's apartment unannounced shortly before 5 p.m. and told Hartmon they wanted to discuss Jeremy's death. The interview lasted approximately 90 minutes. Hartmon had been up since 1:30 a.m. that morning, had worked all day, and had not eaten breakfast, lunch, or supper. Hartmon's seven-year-old daughter was also in the apartment. The agents had the daughter separated from her mother and placed in a back bedroom, where she ate her supper and watched TV. Hartmon was not reunited with her daughter until after the interview.
The BCA agents did not give Hartmon a Miranda warning. Although they did not display their weapons, Hartmon could tell one of them was armed. The agents did not place Hartmon under arrest; however, they did not tell her that she was free to leave or that she was free to end the conversation. Although the agents did not restrict Hartmon's movements, they did ask Hartmon if there were other exits from the apartment.
Hartmon was distraught throughout much of the interrogation. She cried at several points, at one point stating she couldn't breathe because she was crying. During most of the interview, Hartmon professed her innocence. However, after the agents had talked at length with her, discussing the possible sentence she would receive, the spiritual consequences of her refusal to confess, the continued persistence of police in seeking her confession, and other factors, Hartmon finally told the agents that she took Jeremy's life away from him by holding a washcloth over his mouth for less than a minute.
The district court issued an order suppressing Hartmon's January 16, 1985, confession because police had failed to honor her invocation of the right to silence. The court made extensive factual findings relating to the November 14, 2000 statement and ruled that because the statement was not made voluntarily it would be inadmissible at trial. The court also denied Hartmon's motion to dismiss the grand jury indictment and her motion to sanction the prosecution for alleged discovery violations.
In this pretrial appeal, the state challenges the suppression of the January 1985 and the November 2000 statements.

ISSUES
I. Did the district court err in suppressing Hartmon's January 1985 statements as a violation of her right to remain silent?
II. Did the district court err in suppressing Hartmon's November 2000 statements as involuntary and, therefore, in violation of her right to due process?

ANALYSIS
We will reverse a district court's pretrial determination in a criminal prosecution only if the state demonstrates clearly and unequivocally that the district court erred in its judgment and the error will have a critical impact on the outcome of the trial absent reversal. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). The critical impact standard is demanding but it "does not require that the suppression order render the available proof insufficient as a matter of law, or so *53 weak as to effectively destroy a successful prosecution." State v. Edrozo, 578 N.W.2d 719, 723 (Minn.1998). It is undisputed that the suppression of the statements may have a critical impact on the outcome of the trial.

I
Under the Fifth Amendment no person may be compelled to be a witness against himself or herself in a criminal case. U.S. Const. amend. V. The right to cut off questioning is essential in guarding an accused's Fifth Amendment protection against self-incrimination. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (labeling right to remain silent a "critical safeguard"). An accused, through the exercise of the option to terminate questioning, "can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Id. at 103-04, 96 S.Ct. at 326. The right to remain silent "counteracts the coercive pressures of the custodial setting." Id. at 104, 96 S.Ct. at 326.
"[I]f the individual indicates in any manner, at any time prior to or during questioning, that [he or she] wishes to remain silent, the interrogation must cease." State v. Wilson, 535 N.W.2d 597, 602 (Minn.1995) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966)). The judiciary, however, should not substitute its judgment on the meaning of a suspect's actions for the judgment of police officers. State v. Williams, 535 N.W.2d 277, 283 (Minn. 1995). Thus, for constitutional protections to apply, an accused must unambiguously and unequivocally invoke the right to remain silent. Id. at 285; Wilson, 535 N.W.2d at 603.
An appellate court reviews the factual issue of whether an accused unequivocally and unambiguously invoked the right to remain silent for clear error. State v. Hannon, 636 N.W.2d 796, 804 (Minn.2001) (applying the clear-error standard in reviewing district court's finding that accused did not unambiguously and unequivocally invoke his right to counsel). In two recent cases, the Minnesota Supreme Court has adopted a bright-line approach to reviewing invocation of Miranda rights. See id. at 804-05 (finding unequivocal and unambiguous invocation of right to counsel when accused stated, "Can I have a drink of water and then lock me upI think we really should have an attorney."); State v. Day, 619 N.W.2d 745, 750 (Minn.2000) (finding unequivocal and unambiguous invocation of right to remain silent when accused stated, "Said I don't want to tell you guys anything to say about me in court."). The inquiry is whether the accused asserted his right in a way that a reasonable police officer in the same circumstances would understand the statement to be an invocation of the right to remain silent. Id. at 749.
The district court found that after the investigators read Hartmon her Miranda rights they asked if she would like to speak with them. Hartmon responded, "No. I don't wish to say anything." We agree with the district court that Hartmon's response unequivocally and unambiguously invoked her right to silence. See id. at 749-50 (noting that accused clearly invoked right to remain silent by making a statement invoking right immediately after being read Miranda rights).
The state contends that, after invoking her right to silence, Hartmon essentially withdrew it by saying "What am I... what am I...." This claim must be analyzed in the context of whether the investigating officers scrupulously honored Hartmon's invocation of her Fifth Amendment right. See Mosley, 423 U.S. at 102-06, *54 96 S.Ct. at 325-27; Day, 619 N.W.2d at 750.
Once an accused has invoked the right to remain silent, investigating officers must cease the interrogation. State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989). Investigating officers violate the accused's right to remain silent when they refuse to stop the interrogation or attempt to wear down the accused's resistance and force a change of mind. Day, 619 N.W.2d at 750 (citing Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327). Importantly, the United States Supreme Court has noted that when investigating officers resume interrogation after a "momentary cessation," the purpose of Miranda is frustrated. Mosley, 423 U.S. at 102, 96 S.Ct. at 326.
After Hartmon said "No. I don't wish to say anything," the investigating officers began to describe the charges underlying the arrest for welfare fraud. But the officers then abruptly changed the subject of the interrogation to the death of Jeremy. One of the officers chastised Hartmon for not returning his telephone inquiries about Jeremy's death and told Hartmon that her life was not going to get "squared away" until the police resolved the investigation into Jeremy's death. This same officer, knowing that Hartmon had strong religious beliefs, attempted to exploit those beliefs to get her to talk to him. One of the officers continued the questioning about Jeremy's death as they transported Hartmon to the Dakota County jail. At the jail, the officers again initiated interrogation about Jeremy's death. After a few hours of questioning, Hartmon finally made statements suggesting that she did not want Jeremy to suffer and that Jeremy created tension in her marriage.
This extended interrogation did not "scrupulously honor" Hartmon's invocation of her right to counsel. See Mosley, 423 U.S. at 104, 96 S.Ct. at 326 (footnote omitted). Not only was the questioning persistent, it was virtually uninterrupted by Hartmon's unequivocal, unambiguous response, "No. I don't wish to say anything." The district court did not err in suppressing Hartmon's January 1985 statements.
Hartmon alternatively argues that the statements should be suppressed because she was represented by counsel at the time of the questioning, and counsel had sent Dakota County a letter stating that Hartmon should not be questioned unless the attorney was present, and the investigators violated the right to have counsel present. Because we affirm the district court's suppression for failure to cease questioning when Hartmon invoked her right to counsel, we do not address Hartmon's alternative ground.

II
We now turn to the question of whether Hartmon's November 2000 statements were voluntary.
In reviewing a confession for voluntariness, courts must consider the totality of the circumstances, including factors that focus on the defendant and factors that focus on the interrogation process itself. State v. Ritt, 599 N.W.2d 802, 808 (Minn.1999). The subjective factors include, but are not limited to, age, maturity, intelligence, education, and experience with the criminal justice system. State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991). In reviewing the interrogation process, courts often focus on the length of the interrogation, the adequacy or lack of warnings, the denial of physical needs during the interrogation, the denial of access to friends and family during the interrogation, and the statements of the interrogator, specifically whether the statements are of the character that would convince an innocent person to confess. *55 Id.; State v. Slowinski, 450 N.W.2d 107, 112 (Minn.1990).
Both the United States Supreme Court and the Minnesota Supreme Court apply independent appellate review to the issue of whether a defendant's statements were given voluntarily. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985); Ritt, 599 N.W.2d at 808. But the legal question is predicated on the district court's fact findings. Ritt, 599 N.W.2d at 808. The district court made detailed and careful findings on the issue of whether Hartmon's November 2000 statements were voluntary.
At the time of the November 2000 interrogation, Hartmon was 46 years old, had been married three times, had given birth to four children, and was raising a seven-year-old daughter on her own. She did not complete high school but had obtained her GED. She had been regularly employed as a newspaper and advertisement delivery person for two-and-one-half years. Hartmon had prior experience with the criminal justice system. She had previously been on probation for aggravated forgery and had previously been convicted of welfare fraud. These factors suggest that Hartmon was an experienced, mature adult. But the district court also found that Hartmon was of limited intelligence, as demonstrated by a psychological evaluation completed two-and-one-half years after Jeremy's death that showed Hartmon had low-average to average intelligence. The court also cited Hartmon's statements during the interrogation. The psychological evaluation also indicated that Hartmon had a significant need to appear in a favorable light and was psychologically dependent, immature, and naiüve.
We begin our analysis of the interrogation process by noting that the BCA agents did not read Hartmon her Miranda rights during the entire 90 minute interrogation. See Slowinski, 450 N.W.2d at 111 (concluding confession was voluntary, in part because the defendant was read his Miranda rights at the outset). Although the district court concluded that Hartmon was not in custody during the interrogation, Hartmon was confronted by two officers, one of whom she could tell was armed, who inquired about the apartment's exits and told Hartmon to keep the door open when she used the bathroom. Therefore, at least some of the inherently coercive aspects of custodial interrogation were present.
The BCA agents appeared at Hartmon's door without warning. Cf. Ritt, 599 N.W.2d at 809 (noting that defendant, whose statement was ruled voluntary, "had scheduled the time of the interview" with police). The investigators suggested that Hartmon's seven-year-old daughter, for whom Hartmon was preparing supper, watch television and eat her supper in another room of the apartment so she would not overhear the substance of the conversation. At one point, an officer checked on Hartmon's daughter. Although the evidence does not show the agents prevented Hartmon from having any contact with her daughter, they effectively discouraged it. Cf. Slowinski, 450 N.W.2d at 111 (noting defendant, although his first request to speak with his wife was refused, was eventually allowed to call her).
Three times during the interrogation, Hartmon became so emotionally upset that she cried, stated that her "head is swimming," and had difficulty breathing. Cf. Ritt, 599 N.W.2d at 810 (noting defendant "did not cry or break down emotionally" during police interrogation). Although the agents expressed concern and asked if Hartmon needed medical assistance, they did not offer to suspend their questioning. *56 See Pilcher, 472 N.W.2d at 334 (noting that an emotionally distressed defendant should be allowed an opportunity to regain composure before confession and indicating that emotional state may threaten the defendant's ability to voluntarily confess). Moreover, the officers exploited Hartmon's religious beliefs, telling her she had a mortal sin on her soul and that she would go to hell unless she would "get forgiveness" for it by confessing. This line of questioning, which apparently prompted Hartmon's emotional distress, was inherently coercive. See generally Brewer v. Williams, 430 U.S. 387, 412, 97 S.Ct. 1232, 1246, 51 L.Ed.2d 424 (1977) (Powell, J., concurring) (noting that officer's speech about ensuring proper "Christian burial" for victim exploited religious convictions of defendant who had a history of mental disorders).
The record establishes that Hartmon was both tired, having been up since 1:30 a.m., and hungry, having had little to eat during the day. Cf. State v. Ritt, 599 N.W.2d at 810 (noting defendant "gave no indication of being overly tired"). Although it was the supper hour, there is no indication that the agents offered to let Hartmon eat, although she did smoke. Cf. Slowinski, 450 N.W.2d at 111 (noting the defendant was allowed to smoke and drink soft drinks).
One of the agents testified at the omnibus hearing that he went to Hartmon's apartment intending to secure a confession. Although the officers' intent is not determinative of the nature of the interview, their relentless questioning, in the face of Hartmon's insistence on her innocence, contributed to the coercive atmosphere of the interrogation. Cf. State v. Mills, 562 N.W.2d 276, 283 (Minn.1997) (noting that police, before obtaining statement held voluntary, did not view defendant as a suspect and were talking to her merely to establish rapport and understand the case). One of the agents implied that the questioning would continue until Hartmon kicked them out of the apartment.
The ultimate question in determining whether a confession is voluntary is whether the police conduct would have overborne the will of an innocent person. Ritt, 599 N.W.2d at 810. The BCA agents' interrogation of Hartmon created a coercive atmosphere in Hartmon's apartment, culminating almost 20 years of repeated investigatory pursuit and targeting Hartmon's particular vulnerabilities in a way that persuaded the district court that Hartmon's statements were testimonially untrustworthy. We agree. The questioning was not merely "unpleasant," see id., it was, given the totality of the circumstances, inherently coercive.
The United States Supreme Court has held "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment." Miller, 474 U.S. at 109, 106 S.Ct. at 449 (1985). Expressing the same principle, the Minnesota Supreme Court has observed that the "[b]lood of the accused is not the only hallmark of an unconstitutional inquisition * * * and the use of promises, trickery, deceit, and stress-inducing techniques in obtaining confessions have all been condemned." Pilcher, 472 N.W.2d at 333 (citations omitted).
Police investigators face substantial obstacles in resolving an investigation of a death that occurred almost twenty years ago; confessions are one of the limited avenues available to them. But incriminating statements produced by coercion are inherently untrustworthy and undermine fundamental concepts of due process. State v. Garner, 294 N.W.2d 725, 727 *57 (Minn.1980). "We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the `confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation." Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964) (footnotes omitted).
We affirm the district court's suppression of the November 2000 statements as violating Hartmon's due process rights.

DECISION
The district court did not err in suppressing Hartmon's January 1985 statements because Hartmon invoked her right to remain silent and the investigators did not scrupulously honor that right. The investigators' conduct in obtaining the November 2000 statement was overly coercive and violated Hartmon's due process rights. We affirm the suppression of both statements.
Affirmed.
NOTES
[*]  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.