Illinois divorces hearings and trials work in a very specific order. The petitioner or the person presenting the motion to be heard calls their witnesses and puts on their case first. The opponent can cross-examine the witnesses the petitioner or movant has presented but cannot introduce independent evidence in the middle of the other party’s case.
Likewise, when the respondent to the Petition for Dissolution of Marriage or the motion to be heard puts on their case, the petitioner or movant cannot interject in the middle of their opponent’s case with independent evidence.
Both parties must wait for a period called “rebuttal” after they’ve each finished presenting their case-in-chief. Parties typically say “reserve for rebuttal” to indicate they’ve finished presenting their case-in-chief instead of “I rest my case” because of this possibility.
“Rebuttal” is an opportunity “given to a party to present contradictory evidence or arguments.” Black’s Law Dictionary (11th ed. 2019)
Rebuttal evidence is not only a right, rebuttal is a way to have the last word in a divorce hearing or trial. So, rebuttal witnesses should be called if possible.
When Can You Call A Rebuttal Witness In An Illinois Divorce?
“`[W]here a [party] introduces evidence of an affirmative matter in defense or justification, the [other party], as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.'” Flanagan v. Redondo, 231 Ill. App. 3d 956, 967, 172 Ill.Dec. 407, 595 N.E.2d 1077 (1991) (quoting Loftus v. Loftus, 134 Ill. App. 360, 362 (1907))
“Rebuttal evidence is evidence that tends to explain, repel, contradict, counteract, or disprove facts placed in evidence by an adverse party.” McCALEY v. Petrovic, 253 NE 3d 1010 – Ill: Appellate Court, 1st Dist., 1st Div. 2024
There are no surprise witnesses in an Illinois divorce hearing or trial. Rebuttal witnesses have to be disclosed in advance in an Illinois divorce hearing or trial (if an interrogatory asks for the witnesses or a case management order requires automatic disclosure).
“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)(emphasis mine)
The committee comment to that rule states in part that it “is amended to clarify that case management orders will set dates for disclosure of rebuttal witnesses, if any.” Ill. S. Ct. R. 218, Committee Comments (rev. Oct. 4, 2002)
This may seem to fly in the face of logic because, you don’t know what your opponent’s witness is going to say in advance so how would you know what witness to call to rebut the evidence that was just revealed to you?
Ideally, the court assumes you are going to depose your opponent’s witness and ask them, specifically, what they will be testifying to in court.
Even without a 3-hour deposition to inquire into the contents of perhaps 15 minutes of potential testimony, a party should not be surprised by their opponent’s witness’s testimony. Your opponent’s witness disclosure should adequately summarize the expected testimony.
“For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.” Ill. Sup. Ct. R. 213(f)(1)
An opponent’s (presumably controlled) expert witnesses must disclose their testimony in even greater detail.
“For each controlled expert witness, the party must identify: (i)the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.” Ill. Sup. Ct. R. 213(f)(2)
How To Bar A Rebuttal Witness In An Illinois Divorce
Without these detailed disclosures (or discussion of the subject matter in a deposition), the witness should not be able to testify to that subject matter at trial.
“The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial.” Ill. Sup. Ct. R. 213(g)
“In determining whether the exclusion of a witness is a proper sanction for nondisclosure, a court must consider the following factors: (1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (Ill. 2004)
“The decision to allow or deny the introduction of rebuttal testimony is charged to the sound discretion of the circuit court, and the court’s decision will not be set aside unless that discretion is abused.” Hall v. NW. UNIV. MEDICAL CLINICS, 504 NE 2d 781 – Ill: Appellate Court, 1st Dist. 1987 (Citations Omitted)
More common than barring undisclosed rebuttal testimony is objecting that the rebuttal testimony exceeds the scope of the testimony the rebuttal testimony purports to rebut.
It is completely up to the trial judge whether to allow rebuttal evidence which is beyond the scope of the opponent’s case-in-chief.
“[W]here testimony offered in rebuttal might have been introduced in plaintiff’s case in chief, its admission in rebuttal is a decision committed to the discretion of the trial judge” Gabrenas v. RD Werner Co. Inc., 451 NE 2d 1307 – Ill: Appellate Court, 1st Dist. 1983
Judges are likely to be annoyed by rebuttal evidence which is really “I forgot to mention this in my case-in-chief” evidence.
The impossibility of knowing exactly what your opponent’s witness will say means rebuttal evidence should allowed liberally.
A party is not required “to anticipate and present all conceivably relevant evidence in her case in chief” at the risk of being “barred from presenting that evidence in rebuttal in the event defendants presented evidence in their case in chief that plaintiff needed to counter.” Hoem v. Zia, 636 NE 2d 479 – Ill: Supreme Court 1994
“Accordingly, evidence that otherwise qualifies as proper rebuttal evidence is not rendered improper rebuttal evidence merely because it could have been presented during a plaintiff’s case-in-chief (or disclosed in an initial disclosure). However, the purpose of rebuttal is not to provide a second opportunity to present evidence that was or should have been presented in a plaintiff’s case-in-chief.” McCALEY v. Petrovic, 253 NE 3d 1010 – Ill: Appellate Court, 1st Dist., 1st Div. 2024
The deference to the trial court only applies to fresh, new evidence presented in rebuttal.
“While evidentiary rulings involving the admission of rebuttal evidence are within the sound discretion of the trial court, an abuse of discretion may occur where a party is prevented from impeaching a witness, supporting the credibility of an impeached witness, or responding to new points raised by the adverse party.” McCALEY v. Petrovic, 253 NE 3d 1010 – Ill: Appellate Court, 1st Dist., 1st Div. 2024
Can You Rebut A Rebuttal Witness?
Rebuttal should be the end of your case. Bringing up more evidence that you could have presented in your case in chief looks sloppy. But, maybe you were caught off guard and need to bring new information to the judge’s attention before you are truly done with your case. The rebuttal to a rebuttal is called a “surrebuttal”.
“Surrebuttal” is the “response to the opposing party’s rebuttal in a trial or other proceeding; a rebuttal to a rebuttal.” Surrebuttal, Black’s Law Dictionary (11th ed. 2019).
In Illinois, Ross vs. Danter Associates discusses the test of whether a trial court must allow surrebuttal.
“The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal… In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of the presentation of his main case. Contrarywise, the purpose of surrebuttal is not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence. Since surrebutal is only properly permitted where the plaintiff has presented new matters on rebuttal which the defendant desires to oppose we believe that such new matters must be called to the attention of the trial court. Otherwise, there is no basis for granting the request for surrebuttal nor any basis for invoking the discretion of the trial court. Such new matters need not be called to the attention of the trial court in any formal fashion, but we believe the trial court must be given the opportunity and basis for determining whether new matters have indeed been presented on rebuttal. Plaintiffs’ attorney would appear likewise entitled to oppose the defendant’s request on the basis that no new matters had been introduced by way of rebuttal. That the defendant should be required to bring such new matters to the attention of the trial court is fair and reasonable both procedurally and substantively.” Ross v. Danter Associates, Inc., 242 NE 2d 330 – Ill: Appellate Court, 3rd Dist. 1968
Honestly, references to rebuttal reflect a mastery of the trial process and signal competence to the judge that may have greater effect than the rebuttal evidence itself. After all, if your rebuttal evidence was that good…you would have put it in your case-in-chief”
To learn more about Illinois divorce trial techniques, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
