Posted on December 18, 2022

Barring Testimony In An Illinois Divorce Hearing or Trial

The point of a taking a divorce to an Illinois court is to resolve matters that the divorcing parties cannot agree upon.

The Illinois divorce judge then provides equitable relief by ordering each party to do something (divide assets, enter into a parenting plan, etc.)

Courts determine the equitable relief to be granted based on evidence which is almost always established via testimony of a witness.

“On the trial of every action seeking equitable relief, oral testimony shall be taken when desired by either party.” 735 ILCS 5/2-1112

“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992

Either party can bring in witnesses who can testify to any damned thing.

The other party has the right to be prepared for that testimony, though, for the purposes of cross-examination.

“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions” Ill. Sup. Ct. R. 132.

Illinois courts can enforce discovery. In fact, that’s what virtually every status date between the filing of the Petition For Dissolution of Marriage and the trial or prove up is about.

“It is well established that trial courts have wide discretionary powers in the matters of pretrial discovery, the inherent authority to control their dockets, and the inherent authority to enter sanctions for a party’s failure to obey valid orders.” In re Marriage of Faber, 2016 IL App (2d) 131083

Either party can request from other party documents, interrogatories, or even question the proposed witness in advance of trial. If the litigant with the proposed witnesses does not provide sufficient requested discovery in advance of such testimony, the witness can be barred from testifying.

“Rule 219 affords a trial judge broad discretion in fashioning a sanction appropriate under the specific circumstances. “ Locasto v. City of Chicago, 2014 IL App (1st) 113576

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

That a witness be barred from testifying concerning that issue” Ill. Sup. Ct. R. 219(c)(iv)

Everyone deserves their day in court so barring a witness is only allowed under certain circumstances.

“Rule 219 sanctions may only be imposed for violations of discovery orders and pretrial orders.” Sander v. Dow Chemical Co., 166 Ill. 2d 48, 63 (Ill. 1995)

The purpose of threatening to bar a witness is to enforce proper compliance with discovery.

“A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits…When imposing sanctions, the court’s purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)

“The purpose of imposing sanctions under Supreme Court Rule 219(c) is to compel cooperation rather than to dispose of litigation as a means of punishing the noncomplying party. The court may not invoke sanctions which are designed to impose punishment rather than to achieve or effect the objects of discovery. In addition, sanctions are to be imposed only when noncompliance with discovery rules or orders is found to be unreasonable and the order entered is just. A just order is one which, to the degree possible, insures both discovery and a trial on the merits. A default judgment entered as a sanction for noncompliance with discovery rules or orders under Rule 219(c) should be set aside when a trial on the merits may be held without visiting hardship or prejudice on the parties.” CEDRIC SPRING & ASSOC., INC. v. NEI CORP., 402 NE 2d 352 – Ill: Appellate Court, 2nd Dist. 1980

When considering whether to bar a witness from testifying, an Illinois court must balance the equities of actually doing so.

“In determining an appropriate sanction, the trial judge must weigh the competing interests of the parties’ rights to maintain a lawsuit against the necessity to accomplish the objectives of discovery and promote the unimpeded flow of litigation.” Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68 (Ill. 1995)

The “factors that the trial court [may] consider[] in deciding on a constructive sanction [are]: (1) surprise to the adverse party; (2) the prejudicial effect of the proffered evidence; (3) the nature of evidence being sought; (4) diligence of the adverse party in seeking discovery; (5) timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the evidence.” Locasto v. City of Chicago, 2014 IL App (1st) 113576

The most logical and elegant solution is for a court to bar a witness from testifying to the matters which the discovery non-compliance pertained to. The witness can testify to other matters where discovery was, in fact, complete.

Any testimony finally proffered is still subject to a slew of possible objections (relevance, hearsay, etc ) wherein the opposing counsel can try to keep evidence from being considered by the court.

In the end, the court can only consider properly presented evidence to make legally binding conclusions. The ability to prevent the opposing party to prevent evidence effectively makes your evidence the only basis for a legal conclusion.

“[J]udges base their findings only on competent evidence.” People v. Todd, 687 NE 2d 998 – Ill: Supreme Court 1997

What better way to prevent your opponent succeeding than denying them the ability to present evidence via testimony?

If you would like to learn more about filing a Motion To Bar Testimony in your Illinois divorce case, contact my Chicago, Illinois family law firm to discuss your case with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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