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In any civil case, there are numerous court appearances as litigation proceeds from the filing of the complaint through trial. In Illinois, court reporters are not stationed in the courthouse and must be engaged by one or both parties. If a critical case development occurs at a court appearance for which no court reporter is present, Illinois Supreme Court Rule 323(d) allows the parties to enter a stipulation setting forth an agreed statement of facts describing what occurred. Critically, however, the agreed statement of facts must be filed in the circuit (trial) court for inclusion in the record on appeal. The Illinois Appellate Court’s recent decision in Baxter v. Mount Sinai Hospital Medical Center of Chicago, et al., 2026 IL App (1st) 241968-U, illustrates the peril to the appellant if this final step is missed.
Facts
In Baxter, the plaintiff filed his initial medical malpractice lawsuit against the defendants on August 29, 2018. After the case had been pending for 31 months with no action taken, the complaint was dismissed for want of prosecution on March 19, 2021.
The plaintiff refiled his complaint on February 22, 2022. On August 3, 2022, the circuit court entered a case management order requiring the parties to compete discovery by April 22, 2024. The order required expert witness disclosures by October 16, 2023.
On February 13, 2024, the plaintiff filed a motion to extend all case management deadlines, including those pertaining to expert witness disclosure, stating that discovery had not progressed due to counsel’s trial schedules in other matters. The defendants objected, and on March 7, 2024, the parties appeared before circuit court Judge Michael Otto for a ruling. Judge Otto granted the motion and extended the expert disclosure deadline to September 2, 2024. No court reporter was present at this hearing.
On April 26, 2024, approximately six weeks after Judge Otto extended the expert witness disclosure deadline, the parties appeared before circuit court Judge Kathy Flanagan for a trial setting hearing. Judge Flanagan vacated Judge Otto’s March 7, 2024 extension order, closed discovery, and set the case for trial on September 3, 2024. No court reporter was present.
On August 21, 2024, the defendants filed a motion for summary judgment on the ground that the plaintiff had no expert witness to render an opinion on the standard of care and causation, as is required in a medical malpractice action, and had not disclosed any such witness. On September 3, 2024, circuit court Judge Maura Slattery Boyle, the assigned trial judge, agreed and entered summary judgment for the defendants.
Analysis
On appeal, the plaintiff argued that reversal was warranted because the April 26, 2024 discovery closure order constituted an abuse of discretion and prohibited him from meeting his burden of proof through required expert testimony, resulting in summary judgment for the defendants. The plaintiff attached a Supreme Court Rule 323(d) agreed statement of facts to his opening appellant’s brief. This statement set forth the parties’ agreed description of what happened at the March 7, 2024 and April 26, 2024 hearings, but it was never filed in the circuit court.
The appellate court affirmed in a split decision. The majority first affirmed the summary judgment order on the ground that the plaintiff failed to present expert testimony necessary to prove his claim. The majority then affirmed the April 26, 2024 discovery closure order, reasoning that, although “Judge Flanagan’s order vacating Judge Otto’s order and closing discovery, entered just a few weeks after Judge Otto’s order, gives us pause,” it was not an abuse of discretion because “an important goal for every judge is the swift and efficient termination of litigation, albeit preferably on the merits,” and “judges are afforded wide discretion over the management of their court dockets.” Baxter, 2026 IL App (1st) 241968-U, ¶22.
In affirming the discovery closure order, the majority stated that its ruling was limited to the record before it, and the record was incomplete. It contained neither Judge Otto’s reasoning in extending discovery deadlines nor Judge Flanagan’s reasoning in vacating that order and closing discovery weeks later. The record included no transcripts of the hearings and did not include the Supreme Court Rule 323(d) agreed statement of facts appended to the plaintiff’s brief because it had never been filed in the circuit court.
The majority recognized that the plaintiff appended the agreed statement of facts to his brief and discussed the agreed facts in his brief and discussed it therein, but emphasized that because it was never filed below, it was not part of the record on appeal. Accordingly, the majority stated that “we will not consider any portions of plaintiff’s brief setting forth oral statements made by the parties or the circuit court judge and any doubts arising from the incomplete record must be resolved against plaintiff.” Baxter, 2026 IL App (1st) 241968-U, ¶5. The majority concluded:
[T]he proper disposition of plaintiff’s claim requires our review of the record on appeal, inclusive of any transcripts of the relevant proceedings. However, plaintiff simply did not provide a transcript of those proceedings before the circuit court or an acceptable substitute. We again acknowledge plaintiff’s inclusion of an agreed statement of facts in the appendix to his opening brief. However, as our Supreme Court has recently reaffirmed, if pleadings, exhibits, or other materials are not in the record, they may not be placed before a reviewing court in an appendix. Thus, absent the transcript, left unanswered are the reasons supporting either judge’s orders; reasoning about which we must refrain from speculating.
Baxter, 2026 IL App (1st) 241968-U, ¶23.
The dissenting justice opined that the agreed statement of facts appended to the plaintiff’s brief should have been considered despite that it was not filed in the circuit court: “[C]ounsel for the plaintiff and counsel for one group of defendants stipulated to an agreed statement of facts as to what occurred in this case, beginning with their appearance before Judge Otto, continuing with their appearance before Judge Flanagan, and concluding with their appearance before Judge Slattery Boyle, who ruled on the motion for summary judgment. Counsel for both the plaintiff and the other group of defendants relied on that stipulation in their briefs. While I agree with the majority that by attaching this stipulation to this appendix without making it part of the record on appeal, the plaintiff did not follow our Supreme Court rules, those rules clearly provide that in the absence of a transcript, the parties may rely on a written stipulation of facts.” Baxter, 2026 IL App (1st) 241968-U, ¶48.
Practice Pointer
The agreed statement of facts permitted by Illinois Supreme Court Rule 323(d) is a valuable tool for record preservation when no court reporter is present. That said, the rule requires that the agreed statement of facts be filed in the circuit court so that it is properly included in the record. This obligation falls solely on counsel, as the Baxter majority observed in rejecting the dissenting justice’s statement that “if the majority feels it necessary to have this stipulation made part of the record in order to resolve the case, we can certainly order the plaintiff to file these stipulated facts in the circuit court, have that court transmit them to the clerk of this court, and then require the plaintiff file a motion to supplement the record with this stipulation,” Baxter, 2026 IL App (1st) 241968-U, ¶50:
[T]he practical effect of proceeding in the manner suggested by the dissent is to engage this Court in aiding one party to the litigation. We believe that to do so runs contrary to the well-established principle that the reviewing court should not serve as an advocate for a litigant unless justice so requires. We have no obligation either to act as an advocate or to seek error in the record. Based on the record before us, we do not believe justice requires departure from our traditional role as the reviewing court[.]
Baxter, 2026 IL App (1st) 241968-U, ¶25.
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We are neither unmindful nor are we insensitive to the consequences, sometimes harsh, which flow from a party’s non-compliance with our supreme court’s rules. Many a case has been dismissed or issues forfeited for a litigant’s failure to properly present their arguments on appeal. Even so, as a lower court, we are no less bound to comply with Supreme Court rules than are the parties who appear before us.
Baxter, 2026 IL App (1st) 241968-U, ¶38.
In short, proper filing of a Rule 323(d) agreed statement of facts is an absolute requirement. Failure to do so severely restricts the scope of appellate review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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