It’s Time to Allow Citation to Rule 23 Orders as Precedential

Lawyers on both sides of the aisle have had the frustrating experience of finding that perfect on-point authority that could carry the day on summary judgment or a crucial motion in their case only to look at the citation and see the dreaded words “Unpublished Opinion” and was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).” It’s like that movie line, “You had me . . . and, then you lost me.

Like many longstanding rules, Rule 23 has outlived its usefulness. It was originally intended for opinions that broke no new legal ground so they were unpublished to ensure swifter access to published precedential opinions. The chief indicator of this would be the fact that the Illinois Supreme Court would not accept cases decided under Rule 23 since, under the Court’s criteria, opinions that break no legal ground would be, by definition, disqualified. Such is not the case, according to Kirk C. Jenkins, Does an Unpublished Decision or Dissent Help You Get to the Illinois Supreme Court? 103 ISBA Journal, vol. 9 at 54 (Sept. 2015), since 2007 the number of Rule 23 Opinions that made it to the state high court have increased from under 10% to over 40%. As far as access, thanks to the magic of the worldwide web, the public has near immediate access to Illinois Appellate Court opinions so the pipeline could not get clogged by unpublished opinions.

From where I’m sitting the use of Rule 23 gives the impression that it is as a shield to temper the blunt force of certain opinions or provide some sort of escape route for the panel of judges rendering them. It’s stunning that in July alone, Illinois Appellate Courts issued 100, by my count, Rule 23 opinions to date. The prevalence of the use of Rule 23 seems counter to the objectives inherent in the appellate process to establish precedent upon which lawyers and citizens may rely in adhering to the law. After all, why shouldn't the hard work and thoughtful analysis from some of the most talented legal minds who sit on the appellate bench in Illinois be permitted to support decision-making for the entire legal community?

I’m aware of at least two initiatives by Illinois attorneys, one in 2002 and another in 2014, urging a change to Rule 23 allowing opinions filed under it to be cited as persuasive authority. So far, all pleas have fallen on deaf ears. I am appealing to all involved, free the Unpublished Opinion, #freeusfromRule23.

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$27

million

Product Liability - Family man paralyzed in a boating injury when he fell from the upper deck of a yacht. The offer by the insurance company for the defendant was only $3 million before trial and $25 million after three weeks of jury trial, offered after closing arguments.

Trial Attorneys Mark McNabola, Ruth Degnan

$20

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Construction Site Negligence - A man was demonstrating construction equipment known as a “man lift," and was elevated in the air. The lift collapsed, and the plaintiff suffered permanent injuries to his ankle and lower back. McNabola represented one of two seriously injured plaintiffs. Prior to trial, the offer was only $3 million.

Lead Trial Attorney Mark McNabola

$14

million

Medical Malpractice - Following induced labor, the unborn child suffered fetal distress, C-section delivery was delayed. The baby’s mother died from an amniotic fluid embolism during delivery and the baby suffered severe developmental delays.

Lead Trial Attorney Mark McNabola

$12

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Medical Malpractice - A 52 year old man suffered an anoxic brain injury following routine bowel surgery when doctors and nurses at a suburban hospital failed to properly monitor and treat post-operative metabolic changes. This case concluded after evidentiary rulings at the time of jury selection. The offer before trial was only $3 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$10

million

Trucking Negligence - A grandmother who was rendered wheelchair dependent in a motor vehicle incident involving car versus truck. The offer for settlement prior to trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$9.2

million

Medical Malpractice - A young woman suffered amputations as a result of complications following surgery at a suburban hospital in a collar county of Chicago. The doctors and nurses failed to develop and implement an appropriate plan to manage blood thinning medications pre and post-operatively leading to severe clotting and tissue death. The case settled after evidentiary rulings at the time of jury selection. Offer before trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$8.8

million

Trucking Negligence - A young girl was killed when she was struck by a vehicle that had previously collided with a bus that was traveling too fast for conditions. After a ten-day jury trial, a Cook County jury returned a verdict in favor of the family. According to the Jury Verdict Reporter, this is a record high verdict for the wrongful death of a minor in a motor vehicle accident. There was no offer for settlement by any defendant.

Lead Trial Attorney Mark McNabola

$7

million

Trucking Negligence - Cook County jury awarded $7 Million to a construction worker who lost his leg working on a City of Chicago site. As a result of the defendant’s failure to safely route traffic in the area the man was pinned against his truck by a driver. The defendant did not offer any money to settle the case.

Lead Trial Attorney Mark McNabola

$6

million

Motorcycle Negligence - A teenager and her father were injured in a motorcycle accident. The 15 y/o suffered a severe fracture of her right ankle and has required multiple surgeries

Lead Trial Attorney Mark McNabola

$6.8

million

Construction Site Negligence - A young man injured on a construction site received blood thinning medication intended and prescribed for another patient at the defendant hospital. The case was tried to verdict with a jury award of $6.5 million and later settled for $6.8 million.

Lead Trial Attorney Mark McNabola

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million

Medical Negligence - After presenting to the emergency room on three out of four consecutive days with increasing and worsening symptoms, the plaintiff was diagnosed with bacterial meningitis. 

Lead Trial Attorney Mark McNabola

$1.1

million

Medical Negligence - The plaintiff suffered a stillbirth despite having carried her baby to term through a healthy pregnancy as a result of the failure of the nurses and physicians to properly monitor and treat signs and symptoms of significant fetal distress. 

Lead Trial Attorney Mark McNabola

$4.8

million

Car Negligence - The plaintiff, a front seat passenger, suffered multiple fractures and spinal cord injuries resulting in quadriplegia when the car she was riding in traveled through a construction zone and off the end of the roadway where the bridge had been removed, plunging into the construction pit, 25-40 feet below.

Lead Trial Attorney Mark McNabola

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million

Car Negligence -  Two teenage boys were killed when a tire and component parts of the wheel assembly dislodged from the axle of an 18-wheel semi-tractor trailer traveling in the oncoming lane.

Lead Trial Attorney Mark McNabola

$3

million

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Lead Trial Attorney Mark McNabola

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million

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Lead Trial Attorney Mark McNabola

$2.3

million

Car Negligence - A 51 year old mother was killed instantly when a backhoe on the defendant’s flatbed trailer hit an overpass on I-88 in Downers Grove toppling off of the flatbed and onto the top of her car as it travelled behind the flatbed.    

Lead Trial Attorney Mark McNabola

$1.2

million

A 20 year old college student sustained 2nd and 3rd degree burns over her face, neck, chest and arms when a bartender’s stunt involving flaming grain alcohol went bad. 

Lead Trial Attorney Mark McNabola

$1

million

The defendant landowner allowed an unnatural accumulation of ice and water to collect near the entrance to the loading dock receiving door at Navy Pier. 

Lead Trial Attorney Mark McNabola

$3.6

million

Medical Malpractice - A 12 year old girl was deprived of oxygen for 15 minutes during a routine surgical procedure.  Plaintiffs alleged the surgical residents mismanaged the young girl’s airway and negligently allowed her condition to deteriorate before attempting intubation at the bedside.  

Lead Trial Attorney Mark McNabola