Chicago Legal Malpractice Lawyer Blog
Stewart v. Brill & Fishel, 2026 IL App (1st) 240056-U
This is an unpublished Illinois First District Appellate Court decision issued May 12, 2026, reversing a circuit court grant of summary judgment in a legal malpractice case.
Background. Plaintiff Ricky Stewart was injured in 2017 when he fell while working in a Jewel grocery warehouse, suffering a herniated cervical disc that required surgery. He retained attorney Francine Fishel of Brill & Fishel, P.C. to pursue a workers’ compensation claim against Jewel. Following an arbitration hearing, the arbitrator denied Stewart all benefits, finding he failed to prove both that his injury arose out of his employment and that a causal connection existed between his fall and his injuries. Stewart then sued Fishel for legal malpractice, alleging she committed several critical errors in handling his case.
Alleged Negligence. Stewart identified five principal failures by Fishel: (1) she never obtained or introduced the independent medical examiner’s (IME) report, which was favorable to Stewart; (2) she failed to develop or present evidence and legal argument that his injury arose out of his employment; (3) she did not obtain or prepare Stewart with a surveillance video of his fall before the arbitration; (4) she failed to obtain or introduce his emergency room records from the day after the incident; and (5) she promised to appeal the arbitrator’s decision to the Workers’ Compensation Commission but failed to do so.
Circuit Court Ruling. The circuit court granted summary judgment in Fishel’s favor, concluding that Stewart could not establish proximate causation — that is, he could not show he would have won the underlying workers’ compensation case but for Fishel’s negligence. The court reasoned that even if Fishel had introduced the IME report, the arbitrator would have rejected it for the same reason he rejected other medical records: because those records were based on Stewart’s inconsistent accounts of how he fell. The court also found that Stewart’s claim about the appeal promise was a self-serving allegation unsupported by the record.
Appellate Court Analysis. The appellate court reversed on all four substantive grounds. First, regarding the IME report, the court found that genuine factual disputes existed about whether Fishel could have obtained it, and that a reasonable jury could conclude that the IME physician, Dr. Tack, would have provided the precise causation evidence the arbitrator found missing. The court emphasized that Dr. Tack’s opinions were based on MRI imaging rather than Stewart’s varying accounts of his fall, meaning they would not have been vulnerable to the same credibility-based rejection the arbitrator applied to other medical records.
Second, as to the “arising out of employment” element, the court found that Fishel presented virtually no meaningful legal argument on this essential element, citing no authority and failing to develop any of three available legal theories that could have established the element. The court noted Fishel had never even asked Stewart how often he sat down and stood up during his shifts — evidence that could have supported a quantitative risk theory.
Third, regarding the video, the court found disputed facts about whether Fishel knew or should have known a surveillance video existed prior to the hearing. The court also found that Fishel’s failure to seek a continuance upon being surprised by the video at the hearing, and her general lack of preparation to address it, raised jury questions about causation.
Fourth, on the emergency room records, the court found it undisputed that Fishel never obtained them and that the arbitrator expressly drew a negative inference from their absence — meaning a reasonable jury could find this omission contributed to Stewart’s loss.
Finally, on the appeal issue, the court found that the circuit court had simply overlooked a September 11, 2018 email in which Fishel explicitly promised to file the appeal for Stewart. This created a factual dispute a jury must resolve.
Holding. The court reversed the grant of summary judgment and remanded the case, reiterating the well-established principle that proximate causation in a legal malpractice case is almost always a question of fact for the jury and should rarely be resolved as a matter of law.