Be careful what you wish for: Changes announced to Rule 23

I have tried---really, I have---to summon the enthusiasm exhibited by my fellow practitioners concerning the November 20 Supreme Court Order amending Illinois Supreme Court Rule 23.

The Appellate Lawyers Association hailed November 20 as "a great day for the Illinois appellate bar." The ALA's celebratory email breathlessly recounted the "years of advocacy by the Appellate Lawyers Association, working in conjunction with the Illinois State Bar Association and the Chicago Bar Association, for exactly this amendment to Rule 23." I mentioned some of these extensive efforts in a 2017 post (which also sounded a warning to be careful what one wishes for).

The bottom line is that Rule 23 Orders entered after January 1, 2021 may be cited as persuasive authority. They still are not precedential. Rule 23 Orders entered before the first of the year may not be cited "except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case."

The rule change will presumably alleviate the frustration that every appellate practitioner has experienced when a Lexis or Westlaw search returns a case that has exactly the language you were looking to plug into your brief -- only to find that the case was decided under Rule 23. At least if the Rule 23 was entered after 1/1/21. But... will Rule 23 Orders actually be better somehow after the New Year?

If Rule 23 functioned as its original drafters intended, the Supreme Court would never grant a PLA from a Rule 23 Order -- and we all know this is not the case. There are new examples every term.

Rule 23 Orders can be quite scholarly. They can quite carefully delineate and distinguish all applicable precedents as well or even better than published opinions on the subject. And these are the Orders that appellate practitioners are looking to cite when they are issued on or after 1 January. These are the Orders that are fueling the ALA's excitement. Of course, such Orders probably should have been published in the first instance -- and should be published after January 1, 2021, too. Moreover, not all Rule 23 Orders are not created equally.

Every appellate lawyer hopes to contribute, victoriously, to the development of the common law. This can only be done through published opinions. And, at one time, I thought that every case should end up in a published opinion. But I also suspect every appellate practitioner has had cases in which a disposition under Rule 23 was a mercy. (I certainly have.) Sometimes we make really good arguments in not-so-good cases -- but we are relieved when the Appellate Court charitably chooses not to share the refutation of these arguments with the world.

And as grateful as practitioners sometimes are for Rule 23 dispositions, there are others.... It would be impolite as well as not entirely accurate to state that Rule 23 is where the justices bury their mistakes -- but many practitioners have experienced pangs of doubt, while reading numbly through a Rule 23 defeat, about the amount of time that an elected or appointed member of the Appellate Court actually spent with the briefs. Or in crafting, or even editing, the Order. (This is one reason why the 2018 changes to Rule 352, pointedly encouraging more oral arguments, was so gratefully received by the bar.)

Sometimes the ability to use Rule 23 seems to give a panel a seeming license to disregard controlling precedent. I'm sure many appellate practitioners could (but would probably not, not without the liberal administration of sodium pentothal) cite examples of Rule 23 Orders in which the court found the facts so compelling as to require a certain result, the weight of precedent notwithstanding. Published cases may give a practitioner reason to assume success in a given case only to find, to her sorrow, that the Appellate Court never applies that rule when the case can be decided in the shadows of Rule 23. The new rule may flush some of these instances out into the open where they can no longer be politely ignored. That could be a good thing. Only time will tell.