{ "id": 4266793, "name": "MICHAEL MADALINSKI, Indiv. and as Special Adm'r of the Estate of Carol Madalinski, Deceased, Plaintiff-Appellant, v. ST. ALEXIUS MEDICAL CENTER, Defendant (Monico, Pavich and Spevack, Petitioner-Appellant)", "name_abbreviation": "Madalinski v. St. Alexius Medical Center", "decision_date": "2006-12-15", "docket_number": "No. 1\u201404\u20143350", "first_page": "547", "last_page": "563", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 547" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "113 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626444 ], "year": 1983, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0116-01" ] }, { "cite": "339 Ill. App. 3d 1104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469522 ], "year": 2003, "pin_cites": [ { "page": "1107" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/1104-01" ] }, { "cite": "166 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5074128 ], "year": 1988, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0361-01" ] }, { "cite": "248 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942666 ], "year": 1993, "pin_cites": [ { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/1065-01" ] }, { "cite": "366 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264775 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "955-57", "parenthetical": "reviewing Clay and reaffirming its principles" }, { "page": "956", "parenthetical": "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\"" }, { "page": "955", "parenthetical": "denial of a petition for enhanced attorney fees is reviewed under an abuse of discretion standard" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0947-01" ] }, { "cite": "325 Ill. App. 3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570179 ], "weight": 22, "year": 2001, "pin_cites": [ { "parenthetical": "reviewing Clay and reaffirming its principles" }, { "page": "901" }, { "page": "901", "parenthetical": "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" }, { "page": "902", "parenthetical": "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\"" }, { "page": "902" }, { "page": "902-03" }, { "page": "902-03" }, { "page": "902" }, { "page": "903" }, { "page": "903" }, { "page": "903-04" }, { "page": "896" }, { "page": "899", "parenthetical": "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" }, { "page": "897" }, { "page": "904" }, { "page": "897, 901-04" }, { "page": "903" }, { "page": "903" }, { "page": "903" }, { "page": "903", "parenthetical": "Slutsky's skill and the difficulties of the case were \"never fully tested in a trial arena\"" }, { "page": "899", "parenthetical": "having the trial court, which observed counsel during litigation, evaluate a fee claim is \"the more appropriate\" method of review" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0893-01" ] }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] }, { "cite": "116 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543476 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ill-2d/116/0157-01" ] }, { "cite": "365 Ill. App. 3d 702", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264276 ], "year": 2006, "pin_cites": [ { "page": "708", "parenthetical": "\"Under the abuse of discretion standard, the question is not whether this court might have decided the issue differently, but whether any reasonable person could have taken the position adopted by the trial court\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/365/0702-01" ] }, { "cite": "177 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317129 ], "year": 1979, "pin_cites": [ { "page": "176", "parenthetical": "\" '[a]n abuse of discretion occurs when no reasonable person would agree with the position adopted by the trial court' \"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/177/0166-01" ] }, { "cite": "325 Ill. App. 3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570179 ], "year": 2001, "pin_cites": [ { "page": "901" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/325/0893-01" ] } ], "analysis": { "cardinality": 1298, "char_count": 41221, "ocr_confidence": 0.768, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14294115216755882 }, "sha256": "8debddcfd2f72fbebd4911b8ec9f98d75c751f1a7e4e0def9e0e53df60c60e4f", "simhash": "1:9bd967a7f341dced", "word_count": 6687 }, "last_updated": "2023-07-14T20:04:07.948493+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL MADALINSKI, Indiv. and as Special Adm\u2019r of the Estate of Carol Madalinski, Deceased, Plaintiff-Appellant, v. ST. ALEXIUS MEDICAL CENTER, Defendant (Monico, Pavich and Spevack, Petitioner-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE FITZGERALD SMITH\ndelivered the opinion of the court:\nPlaintiff-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 \u201cextraordinary fees\u201d in the amount of one-third of the gross settlement pursuant to section 2 \u2014 1114(c) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1114 (West 2002)). The court denied this request. The firm now appeals, contending that the trial court misinterpreted section 2 \u2014 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 reverse and remand the matter for further proceedings on the petition. For the following reasons, we reverse and remand.\nBACKGROUND\nA 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\u2019s brief only, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).\nMonico 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\u2019s 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\u2019s part in taking his case. For example, Robert Pavich, who would be the primary attorney on Madalinski\u2019s 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.\nAfter quickly gathering evidence to support Madalinski\u2019s claims, Monico timely filed a lawsuit on his behalf, as well as on behalf of his and decedent\u2019s 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 \u2014 6 (West 2002)), and the Rights of Married Persons Act (Family Expense Act) (750 ILCS 65/0.01 et seq. (West 2002)).\nDuring 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\u2019s 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\u2019s position, and reviewed with them medical literature relied upon by both parties\u2019 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.\nThe 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 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.\nMonico 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 \u2014 1114(c) of the Code. The court approved the settlement but denied the firm\u2019s claim for fees, finding that it was entitled to only $1,212,500, pursuant to section 2 \u2014 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\u2019 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\u2019s 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 \u201ccomprehensive submissions\u201d prepared by the firm during this litigation, \u201cit became obvious that [Monico] had invested an extraordinary amount of time and effort during the discovery and pretrial stages of the case.\u201d Gifford and Fetzer further averred that \u201cthis was a difficult case with a significant risk of a defense verdict\u201d and that the issues had been \u201cvigorously contested.\u201d Their affidavits concluded by stating that the firm \u201cdemonstrated an exceptional degree of skill, tenacity and perseverance throughout the pretrial, mediation and trial phases,\u201d 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 \u201ca sum equal to one-third of the gross sum recovered\u201d (emphasis in original), as well as orders entered in two other medical malpractice cases Monico worked on awarding the firm one-third fee amounts.\nAt the hearing on Monico\u2019s motion to reconsider, the court admitted that subsection (c) of section 2 \u2014 1114 of the Code does allow for \u201cextraordinary fees.\u201d However, the court stated that it had \u201clooked at everything\u201d the firm had presented and concluded that extraordinary fees were not warranted here. The court \u201ctook into consideration\u201d \u201call of the factors\u201d 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\u2019s 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 \u201ca nice job.\u201d The court also acknowledged that Madalinski had signed the one-third fee contract with the firm, and it considered the ABA article and affidavits attached to the firm\u2019s motion. Yet, upon reviewing all this, the court found Madalinski\u2019s case was in \u201cthe bell curve for every medical malpractice case\u201d that had come before it, \u201cneither at one extreme nor the other\u201d in the context of difficulty. After repeatedly stating that it \u201clooked at everything\u201d Monico had submitted, the court declared that its fee petition was \u201cwanting in relation to the requirements [the court] has to take into consideration\u201d in awarding extraordinary fees and that it \u201cf[e]ll far short\u201d of them. It noted that there were \u201cno huge amounts\u201d of motions filed, no interlocutory appeals and no mistrials that had to be retried. The court characterized the attached affidavits as \u201cconclusory in nature\u201d 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\u2019s motion to reconsider.\nANALYSIS\nSection 2 \u2014 1114 of the Code governs attorney fees in medical malpractice actions. See 735 ILCS 5/2 \u2014 1114 (West 2002). It states, in relevant part:\n\u201c(a) In all medical malpractice actions the total contingent fee for plaintiffs attorney or attorneys shall not exceed the following amounts:\n331/s% of the first $150,000 of the sum recovered;\n25% of the next $850,000 of the sum recovered; and\n20% of any amount recovered over $1,000,000 of the sum recovered.\n(c) The court may review contingent fee agreements for fairness. In 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.\u201d 735 ILCS 5/2 \u2014 1114 (West 2002).\nAs Monico and the trial court in the instant case both acknowledged, Clay is the preeminent case regarding section 2 \u2014 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 an expert and settle the case for $3 million. Slutsky later filed a petition for attorney fees reflecting \u201cextraordinary services\u201d pursuant to section 2 \u2014 1114(c), beyond the statutory maximum allowed under section 2 \u2014 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\u2019s 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 \u2014 from the client, opposing counsel, an attorney who had voluntarily dismissed the case and three former judges\u2014 describing 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 \u2014 1114(c) and awarded him $138,000, more than the normal fee under section 2 \u2014 1114(a) but less than one-third. Slutsky appealed.\nThe 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 \u2014 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 \u201cstatute *** permits a range of awards for attorneys who perform extraordinary services and not every award of additional fees will\u201d 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 \u2014 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 \u201cmay be utilized in evaluating fee awards under the provisions of section 2 \u2014 1114\u201d). These evaluating criteria include:\n\u201c(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;\n(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;\n(3) the fee customarily charged in the locality for similar legal services;\n(4) the amount involved and the results obtained;\n(5) the time limitations imposed by the client or by the circumstances;\n(6) the nature and length of the professional relationship with the client;\n(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and\n(8) whether the fee is fixed or contingent.\u201d 134 Ill. 2d R. 1.5.\nSee 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) (\u201c ![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\u2019 \u201d).\nApplying the criteria for attorney fees found in Rule 1.5 to Slutsky\u2019s 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 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 and difficulty of and time he spent on the cause, the Clay court found them to be \u201clargely conclusory and without itemization or detail.\u201d 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 \u201c[could not] find that\u201d services rendered \u201cwere so extraordinary that an enhanced fee [was] proper\u201d).\nInterestingly, 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 very issue, as the trial court here held that Monico did not perform extraordinary services in Madalinski\u2019s case. Thus, the firm asserts alternative contentions for its claim that the trial court misinterpreted section 2 \u2014 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).\nIn 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 \u201cfundamentally misconstrued the statute\u201d by declaring that the fee in Madalinski\u2019s case was dictated by subsection (a) of section 2 \u2014 1114 rather than subsection (c). Having reviewed the entire record on appeal, particularly the trial court\u2019s colloquy at the hearing on Monico\u2019s motion to reconsider, we do not believe that the firm\u2019s statement can be fairly attributed to the court.\nWhile it is true that the trial court awarded fees only under section 2 \u2014 1114(a), it is evident that it did so only after it looked at several factors. The court acknowledged that section 2 \u2014 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\u2019s case to merit such an award. The record makes clear that the court did indeed, contrary to Monico\u2019s assertion, consider the present circumstances. For example, the court\u2019s colloquy during the motion to reconsider is replete with statements that it \u201cread everything\u201d and \u201clooked at everything [the firm] gave\u201d it in support of its petition for enhanced fees. This included, by the court\u2019s own reference, the affidavits, the ABA article, and documents from Pavich\u2019s work commitments in Europe. The court also declared in its written orders denying Monico\u2019s petition for extraordinary fees and motion to reconsider that it considered \u201call facts and circumstances\u201d 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 \u201ctook *** into consideration\u201d how far the case progressed, that it went beyond what occurred in Clay, and that it considered \u201call of the factors\u201d of Clay, i.e., that Monico took Madalinski\u2019s 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 \u2014 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 \u201cnothing that is in Clay ha[d] been submitted here, except for the fact that *** [the firm] did a nice job on the case,\u201d and held, instead, that Monico\u2019s \u201csubmissions f[e]ll far short\u201d of exhibiting extraordinary services.\nFrom 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\u2019s assertion that the court wholly failed to exercise its discretion in considering its petition for extraordinary fees is incorrect.\nHowever, this is not the end of our discussion. Although we find that the trial court did use its discretion in evaluating Monico\u2019s fee petition and motion to reconsider, we must still address the firm\u2019s 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\u2019s case, meriting reconsideration of its fee petition under section 2 \u2014 1114(c).\nAs 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 \u201cconscientious judgment\u201d 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).\nMonico 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\u2019s case. While the firm has not detailed how it spent these hours via \u201cofficial\u201d time sheets, it has included in the record a copy of its \u201ccosts advanced\u201d 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. Wfiiile perhaps not the best evidence to demonstrate the time and labor allocated in a case, the sheets do verify Monico\u2019s 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 2Vs weeks.\nAs soon as Monico accepted Madalinski\u2019s 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 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.\nIn 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\u2019s, 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.\nRegarding 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\u2019s award. Clearly, Monico obtained optimal results with the work it performed, with even the trial court here acknowledging that Madalinski was undoubtedly satisfied.\nThese 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, 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\u2019s 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 \u2014 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.\nRegarding 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 longtime medical malpractice attorneys Fetzer and Gifford provided worthy insight into the firm\u2019s experience, reputation and abilities. This is because Fetzer and Gifford observed firsthand Monico\u2019s 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 \u201cdemonstrated an exceptional degree of skill, tenacity and perseverance throughout\u201d the litigation. Additionally, it cannot be denied that Pavich has a formidable legal reputation, exemplified by his selection by the United Nations War 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\u2019s 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.\nUpon 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 \u2014 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 \u2014 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\u2019s 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 services. See Clay, 325 Ill. App. 3d at 897, 901-04.\nThe 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\u2019s award, held that Monico did not perform extraordinary services in Madalinski\u2019s 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\u2019s submissions for its additional fee petition are compared to Slutsky\u2019s. The Clay court declared it had no basis to alter the trial court\u2019s 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\u2019s skill and the difficulties of the case were \u201cnever fully tested in a trial arena\u201d).\nMonico\u2019s situation, however, is in direct contradiction to Slutsky\u2019s. Unlike that attorney, Monico demonstrated the firm\u2019s 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\u2019s employees are also well versed in medical situations, having a registered nurse/attorney on staff whose experience and knowledge proved vital to Madalinski\u2019s case. Moreover, unlike Slutsky, the firm provided the trial court with two other medical malpractice cases similar to Madalinski\u2019s 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 \u201cofficial\u201d 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\u2019s submissions, all the doctors and experts the firm contacted as well as all the activities it performed on Madalinski\u2019s behalf to prepare his case. Significantly, though the ultimate conclusion of this case was a settlement, Monico\u2019s skill and mastery of the difficulties of this case, unlike Slutsky\u2019s, were tested at a trial that lasted almost three weeks and would have obtained a huge jury award for Madalinski.\nIn addition to this, it cannot be forgotten that Monico took Madalinski\u2019s 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\u2019s case, these affiants, as mediators, were more than familiar with this case. Gifford and Fetzer saw firsthand Monico\u2019s preparation and work from pretrial to settlement; they were not simply detached attorneys commenting on general medical malpractice cases but, rather, active participants who attested to the difficulty of Madalinski\u2019s case in particular, the \u201csignificant risk\u201d of a defense verdict, its vigorous contest, and the \u201cexceptional degree of skill, tenacity and perseverance\u201d of Monico throughout the entire litigation.\nIt 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 \u2014 1114(c) with the reviewing court\u2019s 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\u2019s determination that the firm did not perform extraordinary services in Madalinski\u2019s case.\nTherefore, 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\u2019s additional fee request pursuant to subsection (c) of section 2 \u2014 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 \u201cthe more appropriate\u201d method of review).\nCONCLUSION\nAccordingly, for all the foregoing reasons, we reverse the judgment of the trial court and remand this cause for further proceedings pursuant to our decision.\nReversed and remanded.\nMcNULTY, J., concurs.\nWe note that Monico also contends that the trial court \u201cfundamentally misconstrued the statute\u201d by concluding, \u201cin effect,\u201d 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 \u2014 1114(c) applies to all medical malpractice cases, not just those that go to trial. The court immediately responded, \u201cThat is correct.\u201d Accordingly, we do not find Monico\u2019s current appellate subargument of \u201cfundamental misconstruction\u201d in this respect to be viable.", "type": "majority", "author": "PRESIDING JUSTICE FITZGERALD SMITH" }, { "text": "JUSTICE O\u2019MALLEY,\ndissenting:\nI respectfully dissent from the majority opinion. I would not send the case back for reconsideration but would affirm the trial court\u2019s 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.\nFirst, in my view, there is no reason to send this case back pursuant to any subsection of section 2 \u2014 1114 (735 ILCS 5/2 \u2014 1114 (West 2004)), or for any other reason. The record shows that the trial judge carefully considered everything plaintiffs proffered to show that their representation was exceptional; further, she repeatedly said that she had considered \u201ceverything.\u201d 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 than what the statute prescribes.\nThe 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\u2019s 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, 325 Ill. App. 3d at 901, quoting Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1979) (\u201c \u2018[a]n abuse of discretion occurs when no reasonable person would agree with the position adopted by the trial court\u2019 \u201d). 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) (\u201cUnder the abuse of discretion standard, the question is not whether this court might have decided the issue differently, but whether any reasonable person could have taken the position adopted by the trial court\u201d).\nIn 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, 21/2 weeks, among other things, do 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.\nThe 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\u2019s choice and, in my view, does not represent any \u201cextraordinary effort.\u201d I would thus affirm the lower court\u2019s 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.\nHowever, the client in this case signed a contract agreeing to pay the firm \u201cone-third of the gross sum recovered.\u201d 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. Leonard C. Arnold, Ltd. 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 or 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.", "type": "dissent", "author": "JUSTICE O\u2019MALLEY," } ], "attorneys": [ "Robert J. Pavich and Melanie K. Fairman, both of Monico, Pavich & Spevack, and Steven J. Seidman, of Seidman Law Offices, both of Chicago, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "MICHAEL MADALINSKI, Indiv. and as Special Adm\u2019r of the Estate of Carol Madalinski, Deceased, Plaintiff-Appellant, v. ST. ALEXIUS MEDICAL CENTER, Defendant (Monico, Pavich and Spevack, Petitioner-Appellant).\nFirst District (6th Division)\nNo. 1\u201404\u20143350\nOpinion filed December 15, 2006.\nRobert J. Pavich and Melanie K. Fairman, both of Monico, Pavich & Spevack, and Steven J. Seidman, of Seidman Law Offices, both of Chicago, for appellant.\nNo brief filed for appellee." }, "file_name": "0547-01", "first_page_order": 563, "last_page_order": 579 }