                                                                               SIXTH DIVISION
                                                                               December 15, 2006


No. 1-04-3350


MICHAEL MADALINSKI, Individually and as Special            )           Appeal from the
Administrator of the Estate of Carol Madalinski, Deceased, )           Circuit Court of
                                                           )           Cook County.
      Plaintiff-Appellant,                                 )
                                                           )
v.                                                         )           No. 01 L 13513
                                                           )
ST. ALEXIUS MEDICAL CENTER,                                )
                                                           )
      Defendant                                            )
                                                           )
(Monico, Pavich and Spevack,                               )           The Honorable
                                                           )           Carol Pearce McCarthy,
      Petitioner-Appellant).                               )           Judge Presiding.


       PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       Plaintiff-appellant Michael Madalinski was represented by petitioner-appellant law firm

of Monico, Pavich & Spevack (Monico or firm) in a medical malpractice action he filed

individually and as special administrator of the estate of his deceased wife, Carol Madalinski,

against defendant St. Alexius Medical Center. Before a verdict was rendered, the suit settled for

$5,750,000. Thereafter, Monico petitioned the trial court for "extraordinary fees" in the amount

of one-third of the gross settlement pursuant to section 2-1114(c) of the Illinois Code of Civil

Procedure (Code) (735 ILCS 5/2-1114 (West 2002)). The court denied this request. The firm

now appeals, contending that the trial court misinterpreted section 2-1114. Monico asks that we

find that the court wholly failed to use its discretion, reverse its ruling and enter an order

approving the petition for a one-third fee or, alternatively, that the court abused its discretion and
No. 1-04-3350

reverse and remand the matter for further proceedings on the petition. For the following reasons,

we reverse and remand.

                                        BACKGROUND

       A stipulation was entered into and included in the record on appeal between Madalinski,

by and through Monico, and St. Alexius agreeing that St. Alexius would not file a brief and

would otherwise have no part in this appeal. Thus, we consider the instant appeal on Madalinski

and Monico's brief only, pursuant to First Capitol Mortgage Corp. v. Talandis Construction

Corp., 63 Ill. 2d 128, 133 (1976).

       Monico presented the following evidence at the hearing on its petition for fees. In

October 2001, approximately one month prior to the expiration of the statute of limitations,

Madalinski retained Monico to determine if he had a viable claim against St. Alexius for the

death of his wife. Two other law firms had previously rejected Madalinski's case. Monico

conducted an expedited review and, after consulting with experts, determined that the case had

merit but that it would be vigorously defended. Monico explained this to Madalinski, along with

the fact that existing commitments would require an extraordinary effort on the firm's part in

taking his case. For example, Robert Pavich, who would be the primary attorney on Madalinski's

case, had been assigned by the United Nations War Crimes Tribunal for the Former Yugoslavia

as consulting and lead counsel in several matters, requiring a three- to six-year commitment in

Europe. Thus, Monico was in the process of opening an international office there and staffing it

with some of its paralegals, resulting in a reduced number of cases the firm could accept in the

United States.


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No. 1-04-3350

       After quickly gathering evidence to support Madalinski's claims, Monico timely filed a

lawsuit on his behalf, as well as on behalf of his and decedent's minor children, containing counts

pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2002)), the Survival Act (755

ILCS 5/27-6 (West 2002)), and the Rights of Married Persons Act (Family Expense Act) (750

ILCS 65/0.01 et seq. (West 2002)).

       During discovery on the case, Pavich was often required to leave his post in Europe to

return and participate in the litigation. Some 45 discovery depositions were taken by both

parties, mainly of medical personnel. Pavich returned to take or defend depositions of the

treating physicians, as well as eight liability expert depositions. In addition, St. Alexius

produced lengthy manuals and protocols outlining its procedures and policies, which attorneys at

Monico spent weeks reviewing. The firm filed a motion to compel an incident report and peer

review findings, which required briefings, hearings and several depositions. In preparing

Madalinski's side of the case, Monico retained four liability experts and one damages expert.

Two of these experts resided out of state. The firm consulted at length with all these experts to

form opinions on the case. Monico prepared the experts for trial, discussed with them their

thoughts on St. Alexius' position, and reviewed with them medical literature relied upon by both

parties' experts during depositions. Prior to trial, Monico initiated mediation between the parties;

two all-day mediations were conducted for which the firm prepared extensive submissions.

Neither mediation, however, resulted in an offer by St. Alexius.

       The cause proceeded to a jury trial, which lasted from June 21, 2004, to July 8, 2004.

Monico defended against at least 27 motions in limine filed by St. Alexius, while also filing


                                                  3
No. 1-04-3350

several such motions on behalf of Madalinski. The firm called 20 witnesses to testify, including

6 medical witnesses via evidence deposition, one of which had required the parties to travel out

of state. Meanwhile, Monico participated in settlement negotiations with St. Alexius throughout

the trial, culminating in a high-low agreement after the case was submitted to the jury of $2

million to $5,750,000. The jury returned a verdict in favor of Madalinski and against St. Alexius

for $12,407,572. According to the high-low agreement, Madalinski accepted a settlement of

$5,750,000 for him and his minor children.

       Monico filed a petition with the trial court to approve the settlement and for attorney fees

in the amount of one-third of the gross settlement, or $1,916,666.67, pursuant to section 2-

1114(c) of the Code. The court approved the settlement but denied the firm's claim for fees,

finding that it was entitled to only $1,212,500, pursuant to section 2-1114(a) of the Code.

Monico filed a motion to reconsider. It attached two affidavits to this motion: one from Geoffrey

Gifford, a former president of the Illinois Trial Lawyers Association who had been a plaintiffs'

attorney specializing in medical malpractice cases for 27 years, and one from Brian Fetzer, a

fellow of the American College of Trial Lawyers and defense attorney specializing in medical

malpractice cases for 29 years. Gifford and Fetzer had conducted the all-day mediations in

Madalinski's case. Both Gifford and Fetzer averred that due to their medical malpractice

experience, they were familiar with the time and labor required by Monico in this case, as well as

the difficulty and novelty of the issues involved. They also stated that as mediators here, upon

reviewing the evidence and the "comprehensive submissions" prepared by the firm during this

litigation, "it became obvious that [Monico] had invested an extraordinary amount of time and


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No. 1-04-3350

effort during the discovery and pretrial stages of the case." Gifford and Fetzer further averred

that "this was a difficult case with a significant risk of a defense verdict" and that the issues had

been "vigorously contested." Their affidavits concluded by stating that the firm "demonstrated

an exceptional degree of skill, tenacity and perseverance throughout the pretrial, mediation and

trial phases," and that a one-third fee amount was customary and reasonable in such cases. In

addition, Monico attached a study to its motion to reconsider prepared by the American Bar

Association (ABA) detailing a decline in the number of civil jury trials and verdicts, which it

attributed to the complexity and length of these cases. Monico also presented a copy of the

attorney-client contract Madalinski had signed at the time he retained the firm detailing his

agreement to pay "a sum equal to one-third of the gross sum recovered" (emphasis in original), as

well as orders entered in two other medical malpractice cases Monico worked on awarding the

firm one-third fee amounts.

       At the hearing on Monico's motion to reconsider, the court admitted that subsection (c) of

section 2-1114 of the Code does allow for "extraordinary fees." However, the court stated that it

had "looked at everything" the firm had presented and concluded that extraordinary fees were not

warranted here. The court "took into consideration" "all of the factors" espoused in Clay v.

County of Cook, 325 Ill. App. 3d 893 (2001), which, as cited by Monico in its petition, is the

preeminent case on this issue. It acknowledged that Monico had taken Madalinski's case on the

last day of the statute of limitations and that its attorneys worked on it while working full-time

outside the country, got the case to trial in just two years, won it, and did "a nice job." The court

also acknowledged that Madalinski had signed the one-third fee contract with the firm, and it


                                                  5
No. 1-04-3350

considered the ABA article and affidavits attached to the firm's motion. Yet, upon reviewing all

this, the court found Madalinski's case was in "the bell curve for every medical malpractice case"

that had come before it, "neither at one extreme nor the other" in the context of difficulty. After

repeatedly stating that it "looked at everything" Monico had submitted, the court declared that its

fee petition was "wanting in relation to the requirements [the court] has to take into

consideration" in awarding extraordinary fees and that it "f[e]ll far short" of them. It noted that

there were "no huge amounts" of motions filed, no interlocutory appeals and no mistrials that had

to be retried. The court characterized the attached affidavits as "conclusory in nature" and found

the ABA study irrelevant. It further concluded that Monico had already received over $1.2

million in fees, and that Madalinski was now required to support his two minor children by

himself with the settlement. Based on this, the trial court denied the firm's motion to reconsider.

                                            ANALYSIS

       Section 2-1114 of the Code governs attorney fees in medical malpractice actions. See

735 ILCS 5/2-1114 (West 2002). It states, in relevant part:

                       "(a) In all medical malpractice actions the total contingent fee for

                plaintiff's attorney or attorneys shall not exceed the following amounts:

                       33 1/3% of the first $150,000 of the sum recovered;

                       25% of the next $850,000 of the sum recovered; and

                       20% of any amount recovered over $1,000,000 of the sum recovered.

                       ***

                       (c) The court may review contingent fee agreements for fairness. In


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No. 1-04-3350

                special circumstances, where an attorney performs extraordinary services

                involving more than usual participation in time and effort the attorney may apply

                to the court for approval of additional compensation." 735 ILCS 5/2-1114 (West

                2002).

       As Monico and the trial court in the instant case both acknowledged, Clay is the

preeminent case regarding section 2-1114 and additional compensation in medical malpractice

actions. See Clay, 325 Ill. App. 3d 893; see also Ruiz v. City of Chicago, 366 Ill. App. 3d 947,

955-57 (2006) (reviewing Clay and reaffirming its principles). In Clay, a man was stabbed and,

during his treatment at the county hospital, he was rendered a quadriparetic. He retained

attorneys to represent him in a medical malpractice action against the county, but these attorneys

voluntarily dismissed the suit when they could not find an expert to testify that the county

deviated from the standard of care. The man then retained attorney Mark Slutsky, who was able

to find such and expert and settle the case for $3 million. Slutsky later filed a petition for

attorney fees reflecting "extraordinary services" pursuant to section 2-1114(c), beyond the

statutory maximum allowed under section 2-1114(a). Slutsky contended that the case had been

complex and difficult, that he spent an inordinate amount of time developing theories and

locating experts, and spent over 2,000 hours and $114,000 on the case. He told the court he was

faced with problems due to decisions by the client's former attorneys, had trouble finding the

doctors involved, and that key evidence (X-ray films) was lost, making his representation even

more difficult. He attached several affidavits to his petition for fees--from the client, opposing

counsel, an attorney who had voluntarily dismissed the case and three former judges--describing


                                                  7
No. 1-04-3350

the difficulty of the case, the complexity of the issues and the time required, and all concluding

that Slutsky performed extraordinary services and deserved a one-third fee. The trial court found

that Slutsky had performed extraordinary services pursuant to section 2-1114(c) and awarded him

$138,000, more than the normal fee under section 2-1114(a) but less than one-third. Slutsky

appealed.

       The reviewing court held that the trial court had not abused its discretion in its holding

and, thus, it would not award Slutsky a one-third fee. See Clay, 325 Ill. App. 3d at 901.

Beginning with an analysis of section 2-1114(c), the Clay court noted that the statute makes clear

with its permissive but not obligatory language that, even if a court finds the attorney performed

extraordinarily, it is not required to award him one-third; rather, it may conclude he is entitled to

one-third, more than one-third or less than one-third as compensation. See Clay, 325 Ill. App. 3d

at 901 (the "statute permits a range of awards for attorneys who perform extraordinary services

and not every award of additional fees will" be the same, as there is no specific entitlement or

limit). As a guideline, the Clay court determined that the criteria our state supreme court

enumerated in Illinois Supreme Court Rule 1.5 (134 Ill. 2d R. 1.5) to consider the reasonableness

of attorney fees in general would provide a proper review for additional compensation requests

under section 2-1114(c) as well. See Clay, 325 Ill. App. 3d at 902 (factors listed in Rule 1.5

which assist in determining the reasonableness of a general fee "may be utilized in evaluating fee

awards under the provisions of section 2-1114"). These evaluating criteria include:

                       "(1) the time and labor required, the novelty and difficulty of the questions

                involved, and the skill requisite to perform the legal services properly;


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No. 1-04-3350

                         (2) the likelihood, if apparent to the client, that the acceptance of the

                  particular employment will preclude other employment by the lawyer;

                         (3) the fee customarily charged in the locality for similar legal services;

                         (4) the amount involved and the results obtained;

                         (5) the time limitations imposed by the client or by the circumstances;

                         (6) the nature and length of the professional relationship with the client;

                         (7) the experience, reputation and ability of the lawyer or lawyers

                  performing the services; and

                         (8) whether the fee is fixed or contingent." 134 Ill. 2d R. 1.5.

See also Clay, 325 Ill. App. 3d at 902, quoting Chicago Title & Trust Co. v. Chicago Title &

Trust Co., 248 Ill. App. 3d 1065, 1072 (1993) (" '[i]n assessing the reasonableness of fees, the

trial court should consider a variety of factors, including the skill and standing of the attorneys

employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of

responsibility required, the usual and customary charge for the same or similar services in the

community, and whether there is a reasonable connection between the fees charged and the

litigation' ").

        Applying the criteria for attorney fees found in Rule 1.5 to Slutsky's assertions, the Clay

court noted that while he had presented extrinsic submissions bearing upon several of these

factors, many others had no factual support and, accordingly, the balance of factors did not

exhibit an abuse of discretion on the part of the trial court in refusing to award him a one-third

fee. See Clay, 325 Ill. App. 3d at 902-03. Slutsky did not provide any evidence regarding his


                                                    9
No. 1-04-3350

skill and reputation, the usual and customary charge for the same services, or other similar

instances where fees were increased to one-third. See Clay, 325 Ill. App. 3d at 902-03.

Moreover, while he presented six affidavits attesting to the novelty, difficulty and time he spent

on the cause, the Clay court found them to be "largely conclusory and without itemization or

detail." Clay, 325 Ill. App. 3d at 902. Neither Slutsky nor the affiants ever described or

specified how Slutsky spent all the time he claimed he worked on the cause, how many doctors

he contacted, how much time he expended with experts or how he arrived at his theories. See

Clay, 325 Ill. App. 3d at 903. Moreover, although Slutsky obtained a favorable settlement, his

skills were never tested at a trial. See Clay, 325 Ill. App. 3d at 903. Ultimately, the Clay court

acknowledged Slutsky for his efforts and the settlement he helped obtain but, while stating that it

perhaps may not have reversed a one-third fee had the trial court awarded one, it concluded that it

would not increase the fee since there was nothing in the record to indicate that the trial court had

abused its discretion in reaching its award. See Clay, 325 Ill. App. 3d at 903-04; see, e.g., Ruiz,

366 Ill. App. 3d at 956 (finding no abuse of discretion on part of trial court where reviewing

court likewise "[could not] find that" services rendered "were so extraordinary that an enhanced

fee [was] proper").

       Interestingly, in the instant case, while Clay is certainly applicable, it is not wholly on

point with the facts presented here. In Clay, the trial court had affirmatively held that Slutsky

performed extraordinary services in the underlying case; while the amount of additional fees to

be awarded was at issue, this portion of the decision was never challenged in, or questioned by,

the reviewing court. See Clay, 325 Ill. App. 3d at 896. In contrast, the instant case raises this


                                                 10
No. 1-04-3350

very issue, as the trial court here held that Monico did not perform extraordinary services in

Madalinski's case. Thus, the firm asserts alternative contentions for its claim that the trial court

misinterpreted section 2-1114 in evaluating its petition for fees: either that the court did not

exercise its discretion by completely ignoring the factors to be used to determine extraordinary

fees as outlined in Clay, or that the court exercised its discretion but abused it in evaluating the

factors and ultimately denying additional fees under subsection (c).

       In addressing the first contention, we note that Monico, citing South Suburban Safeway

Lines, Inc. v. Regional Transportation Authority, 166 Ill. App. 3d 361, 365 (1988), insists on a de

novo standard of review, as it claims that the trial court failed to use any discretion in considering

the fee petition. Specifically, the firm argues that the trial court "fundamentally misconstrued the

statute" by declaring that the fee in Madalinski's case was dictated by subsection (a) of section 2-

1114 rather than subsection (c).1 Having reviewed the entire record on appeal, particularly the

trial court's colloquy at the hearing on Monico's motion to reconsider, we do not believe that the

firm's statement can be fairly attributed to the court.


       1
           We note that Monico also contends that the trial court "fundamentally misconstrued the

statute" by concluding, "in effect," that subsection (c) applies only to cases tried to verdict rather

than to all medical malpractice cases. This is quickly dispelled by the record. During the motion

to reconsider, Monico argued this point to the court by stating that section 2-1114(c) applies to

all medical malpractice cases, not just those that go to trial. The court immediately responded,

"That is correct." Accordingly, we do not find Monico's current appellate subargument of

"fundamental misconstruction" in this respect to be viable.

                                                  11
No. 1-04-3350

       While it is true that the trial court awarded fees only under section 2-1114(a), it is evident

that it did so only after it looked at several factors. The court acknowledged that section 2-

1114(c) does allow for extraordinary fees above and beyond those prescribed in subsection (a); it

simply concluded that Monico had not done enough in Madalinski's case to merit such an award.

The record makes clear that the court did indeed, contrary to Monico's assertion, consider the

present circumstances. For example, the court's colloquy during the motion to reconsider is

replete with statements that it "read everything" and "looked at everything [the firm] gave" it in

support of its petition for enhanced fees. This included, by the court's own reference, the

affidavits, the ABA article, and documents from Pavich's work commitments in Europe. The

court also declared in its written orders denying Monico's petition for extraordinary fees and

motion to reconsider that it considered "all facts and circumstances" surrounding this issue.

Further, and even more specific, the court made mention of several Clay factors during the

hearing on the motion to reconsider. The court stated that it "took *** into consideration" how

far the case progressed, that it went beyond what occurred in Clay, and that it considered "all of

the factors" of Clay, i.e., that Monico took Madalinski's case at the very end of the statute of

limitations, the firm was able to resolve the case in just two years, Monico won the case, and

Madalinski was surely happy with the outcome--all while Pavich was commuting from Europe.

The court also recognized that Madalinski had signed a one-third fee agreement. Yet, upon all

this, the court concluded that "nothing that is in Clay ha[d] been submitted here, except for the

fact that *** [the firm] did a nice job on the case," and held, instead, that Monico's "submissions

f[e]ll far short" of exhibiting extraordinary services.


                                                  12
No. 1-04-3350

       From all this, we cannot conclude, as Monico would have us, that the trial court

completely ignored the evaluating factors announced in Clay. Simply put, the record clearly

contradicts this. Accordingly, the firm's assertion that the court wholly failed to exercise its

discretion in considering its petition for extraordinary fees is incorrect.

       However, this is not the end of our discussion. Although we find that the trial court did

use its discretion in evaluating Monico's fee petition and motion to reconsider, we must still

address the firm's alternative contention; that is, we must examine whether, as Monico asserts,

the court abused that discretion in considering the Clay factors as they relate to the instant case

and in ultimately denying its petition for enhanced fees based on its conclusion that Monico did

not render extraordinary services. It is on this point that we agree with the firm and find that

Monico provided extraordinary services in litigating Madalinski's case, meriting reconsideration

of its fee petition under section 2-1114(c).

       As noted, abuse of discretion is the proper standard to be applied when an appellate court

is called upon to review a judicial award of attorney fees. See Clay, 325 Ill. App. 3d at 899

(discussing legal reasoning and past case law to arrive at this conclusion as a matter of first

impression, noting that this determination is a qualitative rather than quantitative one in which

trial court is to apply own knowledge and experience); Ruiz, 366 Ill. App. 3d at 955 (denial of a

petition for enhanced attorney fees is reviewed under an abuse of discretion standard). A trial

court abuses its discretion when it makes an arbitrary decision or fails to use "conscientious

judgment" in reaching its ultimate determination. See In re Marriage of Munger, 339 Ill. App. 3d

1104, 1107 (2003); accord In re Marriage of McDonald, 113 Ill. App. 3d 116, 119 (1983).


                                                  13
No. 1-04-3350

       Monico presented the trial court with various submissions addressing each of the Clay

factors used to evaluate fee petitions. Regarding the first factor of time, labor and difficulty,

Monico asserts it expended some 2,000 hours working on Madalinski's case. While the firm has

not detailed how it spent these hours via "official" time sheets, it has included in the record a

copy of its "costs advanced" sheets which, though primarily highlighting the costs associated

with the case, also chart what the firm did (i.e., depositions, filings, record reviews) on what

particular days. Most significantly, these sheets provide the names of the various witnesses and

medical experts Monico contacted, worked with and deposed. While perhaps not the best

evidence to demonstrate the time and labor allocated in a case, the sheets do verify Monico's

assertions that it deposed some 45 witnesses, conducted lengthy expert (four liability and one

damages expert, two of which resided out of state) and written (hospital manual and protocol

review, requiring further depositions) discovery, participated in two all-day mediations, and

prepared for trial. Moreover, as further evidence of its labor and the intricacy of the underlying

case, Monico called 20 witnesses at trial and presented medical expert testimony via 6 evidence

depositions, one of which required an out-of-state visit. The trial lasted some 2 ½ weeks.

       As soon as Monico accepted Madalinski's case, the firm dealt with the next Clay factor of

the likelihood of acceptance precluding other employment. Monico informed Madalinski even

before taking his case that Pavich, the lead attorney who would be working on it, had just been

assigned by the United Nations War Crimes Tribunal to work in Europe for three to six years.

Monico further explained that the firm was in the process of opening an international office and

transferring some of its staff to Europe as well. Though it would accept the case, Monico made


                                                 14
No. 1-04-3350

certain that its new client understood it was reducing its number of cases overall because of this

and that the instant case would require a lot of effort because it would be vigorously defended by

the opposing party.

       In addressing the next factor of the fee customarily charged for such a case, Monico

presented the trial court with documents from two prior cases in which the firm was involved.

Both of these, like Madalinski's, were wrongful death medical malpractice cases involving

surviving spouses and children. In both these instances, Monico was awarded a one-third fee for

its work.

       Regarding the amount involved and the results obtained in this case, we note that

following two all-day mediations, the hospital made no offer to Madalinski. Yet, at the close of

trial, Monico was able to secure a high-low agreement of between $2 million and $5,750,000.

And most interestingly, the jury, returned a verdict of $12,407,572. Monico, thus, was able to

secure the high end of the agreement for Madalinski and his children, a sizeable settlement

especially in light of the fact that two other firms had reviewed and then declined to take his case.

Also significant is that the firm was able to negotiate a settlement; this meant no posttrial

motions or appeals jeopardizing or delaying Madalinski's award. Clearly, Monico obtained

optimal results with the work it performed, with even the trial court here acknowledging that

Madalinski was undoubtedly satisfied.

       These results are even more impressive when the time limitations surrounding this case

are considered. Madalinski did not present the case to Monico until there were only a few weeks

left before the expiration of the statute of limitations on the claim. In addition, as noted earlier,


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No. 1-04-3350

Madalinski approached Monico at a time when the firm was expanding to Europe, it was

decreasing the number of cases accepted, and one of its primary attorneys, the one who would be

assigned to the case, was required to work overseas on international matters for three to six years.

In spite of this, Monico was able to conduct an expedited review of Madalinski's case and find, in

a very short amount of time, substantive legal evidence through its consultations with experts to

form the bases of viable claims--something two previous law firms could not. Not only was

Monico able to timely file the suit, but it was able to do so on behalf of both Madalinski and his

minor children and include claims other than wrongful death, such as counts involving the

Survival Act and Family Expense Act.

       Regarding the remaining Clay factors, Monico demonstrated to the trial court that it had

built a relationship with Madalinski that has lasted approximately four years and while the

majority of it encompassed preparing him and his children for this trial, the firm also helped the

family in other legal matters. Moreover, the affidavits Monico provided in this case from long-

time medical malpractice attorneys Fetzer and Gifford provided worthy insight into the firm's

experience, reputation and abilities. This is because Fetzer and Gifford observed firsthand

Monico's conduct and preparation at the two all-day mediations. Fetzer and Gifford, having

become quite familiar with the case, both attested that the firm invested an extraordinary amount

of time and effort during discovery and pretrial stages, that this was a difficult case with a

significant risk of a defense verdict, and that Monico "demonstrated an exceptional degree of

skill, tenacity and perseverance throughout" the litigation. Additionally, it cannot be denied that

Pavich has a formidable legal reputation, exemplified by his selection by the United Nations War


                                                 16
No. 1-04-3350

Crimes Tribunal to be its lead and consulting counsel in several major international matters.

Pavich, in fact, has litigated medical malpractice claims for over 20 years and has been a

mediator, and his litigation team at Monico is stocked with experienced personnel, including a

nurse/attorney whose experience and knowledge proved vital to Madalinski's case. Finally, as

the trial court recognized, Madalinski agreed at the outset of this case to a one-third contingent

fee agreement. He has not at any point in this matter, even at the current appellate level,

attempted to declare that such a fee for the work Monico did in his case is unreasonable.

       Upon review of all these factors, one may argue that the submissions in the instant case

are similar to those of attorney Slutsky in Clay and, thus, that the same result should be reached;

that is, that Monico does not merit additional fees under section 2-1114(c). However, as we

highlighted earlier, the instant case is distinguishable from Clay. Again, the trial court in Clay

held that Slutsky had performed extraordinary services in the underlying medical malpractice

case. See Clay, 325 Ill. App. 3d at 897. Although the trial court did not give Slutsky a full one-

third fee, it did award him in excess of what he would have received under section 2-1114(a)

(about 26.68% rather than 20% of the recovery) by instead evaluating his fee petition under

subsection (c), precisely because of his extraordinary services. See Clay, 325 Ill. App. 3d at 904.

That Slutsky was found to have performed extraordinary services and merited a fee review

pursuant to subsection (c) rather than (a) was never in dispute; the Clay court acknowledged the

trial court's holding that Slutsky had performed accordingly and focused only on whether the

enhanced fee it had awarded Slutsky under subsection (c) should have been greater (i.e., an

amount closer to one-third or perhaps even more, as he desired) because of his extraordinary


                                                 17
No. 1-04-3350

services. See Clay, 325 Ill. App. 3d at 897, 901-04.

        The significant difference in the instant case is that the trial court here, after employing

the criteria the Clay court used to determine the propriety of Slutsky's award, held that Monico

did not perform extraordinary services in Madalinski's medical malpractice case. Yet, based on

our review of the factors, it is clear to us that the firm did indeed perform these services,

particularly when Monico's submissions for its additional fee petition are compared to Slutsky's.

The Clay court declared it had no basis to alter the trial court's award for multiple reasons. For

example, it criticized Slutsky for his failure to provide factual support for several factors, such as

his skill and standing in the community and the customary charge for similar services. See Clay,

325 Ill. App. 3d at 903. Nor did Slutsky ever provide documentary evidence of other similar

instances where fees were increased to one-third of a recovery, or any detail as to how he spent

the hours he said he worked on the case, or at the very least how many doctors or experts he

contacted. See Clay, 325 Ill. App. 3d at 903. Moreover, the Clay court found the affidavits

Slutsky submitted to be conclusory and nonspecific. See Clay, 325 Ill. App. 3d at 903. And,

significantly, though Slutsky reached a favorable settlement for his client, he was never required

to take the case to trial. See Clay, 325 Ill. App. 3d at 903 (Slutsky's skill and the difficulties of

the case were "never fully tested in a trial arena").

        Monico's situation, however, is in direct contradiction to Slutsky's. Unlike that attorney,

Monico demonstrated the firm's skill and standing in the community by submitting documents

showing that its lead attorney had been hand-selected by a committee of the United Nations to

lead and consult on international projects in Europe. Monico's employees are also well versed in


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medical situations, having a registered nurse/attorney on staff whose experience and knowledge

proved vital to Madalinski's case. Moreover, unlike Slutsky, the firm provided the trial court

with two other medical malpractice cases similar to Madalinski's on which it worked (i.e., also

involving surviving spouses and children), wherein its fees were increased to one-third of the

recovery. While Monico, like Slutsky, failed to attach an "official" time sheet outlining the hours

of its work in this case, the record does contain a list of its costs advanced which clearly details,

unlike Slutsky's submissions, all the doctors and experts the firm contacted as well as all the

activities it performed on Madalinski's behalf to prepare his case. Significantly, though the

ultimate conclusion of this case was a settlement, Monico's skill and mastery of the difficulties of

this case, unlike Slutsky's, were tested at a trial that lasted almost three weeks and would have

obtained a huge jury award for Madalinski.

       In addition to this, it cannot be forgotten that Monico took Madalinski's case with only a

few weeks left before the expiration of the statute of limitations, and two previous firms had

refused to take the case because they could not substantiate any viable claims. Monico was able

to conduct an expeditious review, complete with experts, and timely file the case to include the

minor children and multiple counts of liability. The firm then took the case all the way to trial,

all while its lead attorney juggled obligations overseas. While the affidavits Monico attached to

its fee petition can be labeled conclusory in some respects like those in Slutsky's case, these

affiants, as mediators, were more than familiar with this case. Gifford and Fetzer saw firsthand

Monico's preparation and work from pretrial to settlement; they were not simply detached

attorneys commenting on general medical malpractice cases but, rather, active participants who


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attested to the difficulty of Madalinski's case in particular, the "significant risk" of a defense

verdict, its vigorous contest, and the "exceptional degree of skill, tenacity and perseverance" of

Monico throughout the entire litigation.

        It is our view that if, based on the facts of Clay, that trial court found that Slutsky

warranted an enhanced fee for extraordinary services and awarded him accordingly under section

2-1114(c) with the reviewing court's acknowledgment and affirmance, then Monico, which

submitted even more support for its assertion that it performed extraordinary services, certainly

deserves the same. It is the differences between the instant case and Clay, which we have

highlighted, that support our reasoned conclusion that Monico merits a reconsideration of the

trial court's determination that the firm did not perform extraordinary services in Madalinski's

case.

        Therefore, having found that Monico performed extraordinary services on behalf of

Madalinski in the underlying medical malpractice case, we believe the best course of action is to

remand this case to the trial court to reevaluate the firm's additional fee request pursuant to

subsection (c) of section 2-1114 dealing with extraordinary services, rather than subsection (a),

which does not consider them. See Clay, 325 Ill. App. 3d at 899 (having the trial court, which

observed counsel during litigation, evaluate a fee claim is "the more appropriate" method of

review).

                                           CONCLUSION

        Accordingly, for all the foregoing reasons, we reverse the judgment of the trial court and

remand this cause for further proceedings pursuant to our decision.


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No. 1-04-3350

       Reversed and remanded.

       McNULTY, J., concurs.

       O'MALLEY, J., dissents.

Justice O'MALLEY dissenting:

       I respectfully dissent from the majority opinion. I would not send the case back for

reconsideration but would affirm the trial court's finding that no exceptional circumstances exist

which would justify additional fees. However, I would reverse the lower court and hold that a

one-third contingency fee should be awarded based upon the fact that the client signed a valid

contract agreeing to the same.

       First, in my view, there is no reason to send this case back pursuant to any subsection of

section 2-1114 (735 ILCS 5/2-1114 (West 2006)), or for any other reason. The record shows that

the trial court carefully considered everything plaintiffs proffered to show that their

representation was exceptional; further, she repeatedly said that she had considered "everything."

The judge found that while these attorneys had done a good job which resulted in a favorable

outcome for plaintiff, there was insufficient evidence of extraordinary work which would justify

a fee larger then what the statute prescribes.

       The majority acknowledges, and I agree, that the standard which applies here is an abuse

of discretion. Thus, if we were to reverse the trial court's decision as to exceptional

circumstances or the lack thereof, we would have to find that no reasonable court could have

reached the same conclusion. Clay v. County of Cook, 525 Ill. App. 3d 898 ("an abuse of

discretion occurs when no reasonable person would agree with the position taken by the trial


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No. 1-04-3350

court"). While as a reviewing court, we may have reached a different conclusion, it is axiomatic

that we should not substitute our judgment for that of the lower court, because it is almost always

in a better position to assess the circumstances. See In re Marriage of Samardzija, 365 Ill. App.

3d 702, 708 (2006) ("Under the abuse of discretion standard, the question is not whether the

Appellate Court might have decided the issue differently, but whether any reasonable person

could have taken the position adopted by the trial court").

       In reviewing the evidence presented regarding the number of depositions, motions in

limine, a single mediation and other work performed, this very experienced trial judge reached

the conclusion that there was nothing out of the ordinary. Viewing the same evidence, I cannot

say that no reasonable person could have reached this conclusion. Medical negligence cases

routinely, or as a matter of course, require an enormous commitment in terms of time and money

for lawyers who handle them. The lawyers presumably know this at the outset. In this case, the

number of depositions, 45, and motions in limine, 29, and the length of the trial, 2 ½ weeks,

among other things, does not appear to be extraordinary for this type of litigation. In fact, the

numbers in other cases, are often well in excess of those documented in this case.

       The only unusual thing here is that a partner who had European commitments was

assigned to this case and apparently did much commuting. This seems to be the firm's choice

and, in my view, does not represent any "extraordinary effort." I would thus affirm the lower

court's ruling that no exceptional circumstances existed which would justify a larger than normal

fee. In addition, because I believe the court examined all the factors initially, I would decline to

send it back for another review.


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No. 1-04-3350

       However, the client in this case signed a contract agreeing to pay the firm "one-third of

the gross sum recovered." No one, including the client, has challenged that. The Supreme Court

has held that contingent fee agreements are appropriate so long as they are reasonable. Arnold v.

Northern Trust Co., 116 Ill. 2d 157 (1987). One might speculate that the client was under some

pressure to agree to a larger fee where his case had been declined by several other law firms and

the statute of limitations was running imminently. An equally reasonable speculation is that the

client was absolutely delighted to have found someone to champion his cause. However, this is

pure speculation and there is no allegation or even suggestion here that this contract was not

absolutely voluntary nor that it was not reasonable. Therefore, I would reverse and award the

additional fees requested by the law firm on the basis of this valid contract.




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