The Illinois Supreme Court has implemented a change to a rule that has long frustrated Illinois practitioners. Beginning January 1, 2021, orders issued by the Appellate Court under Rule 23 may now be cited in legal briefs as persuasive authority. To understand the significance of the amendment, a bit of history is in order.
As Chief Justice Burke noted in announcing the amendment to Rule 23, the Rule was adopted in 1994 to address a burgeoning problem of an “avalanche of opinions,” many of which were too long. As a result, the Court implemented Rule 23, which provided the Appellate Court could issue non-published orders that included the following warning:
NOTICE: This order 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).
The exceptions were double jeopardy, res judicata, collateral estoppel, or law of the case.
For those of us who were trained to perform legal research using books, the volume of published materials to sift through was a legitimate concern during hours-long research sessions in a library. However, as the Court has now recognized, the ubiquity and relative simplicity of electronic legal research platforms has eliminated concerns that were so prevalent in 1994.
What impact will the amended rule have on Illinois litigators? While we have not performed an exhaustive statistical analysis, for the sake of example, we note the Appellate Court issued 105 orders under Rule 23 from December 1, 2020 through December 11, 2020. In contrast, the Court issued 60 opinions (consisting of slip opinions which have not yet been released for publication as well as final, released versions) during the same time period. The issuance of a majority of Rule 23 orders has been a source of frustration for many Illinois litigators. Indeed, I am sure we have all experienced a brief moment of excitement followed by disappointment when an associate provides what they believe is a great case to support our position, only to realize it was a Rule 23 order that could not be cited. The opposite is certainly true as well. I recently read, with consternation, a Rule 23 order in which the Appellate Court discussed a doctrine which has never been formally adopted by an Illinois court as if it were a fundamental legal principle. I knew this was true because I had successfully argued a motion to dismiss a claim based on this doctrine not too long ago and was familiar with the issue. The trial court agreed with me that Illinois had not adopted the doctrine. In this latter instance, the fact that the order could not be cited was a welcome application of the Rule.
With the amendment, a Rule 23 order “may be cited for persuasive purposes,” although it will not constitute binding precedent. While some commentators have questioned the distinction, one certainly exists. Binding precedent is that which must be followed by lower courts while persuasive authority is just what it sounds like – a court might consider the Rule 23 persuasive but would not be bound to follow it. It bears noting the Court left Rule 23(f) intact, which permits a party to move to have the order published as an opinion, thereby potentially changing the status from a persuasive order to a precedential opinion.
While the practical impact of the amended rule remains to be seen, all signs point to this as being a welcome and positive development for the Illinois legal community.