Chief Justice Anne M. Burke and the Illinois Supreme Court announced today the amendment of Rule 23, which will allow litigants to cite unpublished opinions from the Illinois Appellate Courts for persuasive purposes. Amended Rule 23 is effective Jan. 1, 2021.
The Illinois Supreme Court Rules including Amended Rule 23 can be found on the court’s website.
“Changes to Rule 23 have been discussed and studied for a long time,” Chief Justice Anne M. Burke said. “This amendment is a welcome change and will improve the administration of justice in Illinois.”
Under Rule 23 as previously constituted, litigants could cite rulings from other jurisdictions as persuasive authority but were not able to cite unpublished Illinois Appellate Court rulings. This led to a confusing situation where an Illinois trial court ruling could be cited without running afoul of the rule, but an unpublished appellate order affirming that very same trial ruling could not be cited.
Previously, Rule 23 was considered necessary at a time when the majority of legal research was done using books. As described by the late Chief Justice Michael A. Bilandic in 1994, there was “an avalanche of opinions” from Appellate Courts at the time and many were simply “too long.” But with today’s text-searchable electronic legal research databases this is no longer a significant concern.
The amendment to Rule 23 was recommended by the Supreme Court Rules Committee, after a public hearing on June 24, 2020 generated numerous written comments and testimony from organizations and practitioners. The commentary received overwhelmingly supported allowing citation to unpublished opinions for persuasive authority.
“It is a very welcomed development for both bench and bar,” said Attorney J. Timothy Eaton, who served as Co-Chair of a Special Committee on Supreme Court Rule 23 comprised of appointees from the Chicago Bar Association, Illinois State Bar Association, Appellate Lawyers’ Association, and the Executive Committee of the Illinois Judges Association. The Special Committee submitted written comments and testimony in support of amending Rule 23 to allow citation to unpublished opinions for persuasive authority.
The ISBA Civil Practice and Procedure Section applauds the Court for amending Rule 23. Through its biannual Allerton House Conference, the Civil Practice and Procedure Section has spent significant time discussing and exploring options for amending the Rule.