Too many family law attorneys treat trial like a school project—summarize the facts, cite the law, hand it to the judge like a term paper. But Illinois divorce trials don’t grade on neatness and organization. Illinois trials require evidence, foundation, and admissibility.
Evidence must be admitted consistent with the Illinois rules of evidence. Every little item you want the court to take notice of must be properly admitted which requires laying foundation and establishing authentication while being free from evidentiary objections (or subject to an exception to an objection).
In a divorce, if the marital estate includes assets and sources of income beyond the usual set of issues: house, 401k and W2s the process of admitting evidence can become overly tedious for everyone…especially the judge.
Beyond creating a balance sheet of a multitude of accounts, assets and debts, divorce cases can involve complicated dissipation allegations, commingling and tracing of marital or non-marital contributions. The more detailed the case, the more likely it is that the divorce judge will allow a summary of the evidence in lieu of individual admission of each piece of original evidence.
Getting Exhibits Into Evidence In An Illinois Divorce Trial
Financials rarely come into evidence via testimony alone. For the court to adequately tabulate who owns or owes what, the court needs exhibits which are almost writings.
““Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” Ill. R. Evid. 1001(1)
Ideally, the writing observed will be an original.
“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Ill. R. Evid. 1002
Duplicates are perfectly okay so long as they are truly exact copies.
“A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003
The problem is when there are dozens to thousands of documents for the court to consider. This process of introducing each individual document becomes untenable. In situations with “voluminous documents” the courts can allow summaries in lieu of actual admission of the underlying documents.
Charts, Summaries And Calculations As Evidence In An Illinois Divorce Trial.
Admitting financial summaries such as a spreadsheet in an Illinois divorce trial is allowed if you follow a strict series of steps.
“The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.” Ill. R. Evid. 1006
Admitting a chart, summary or calculation eliminates the need for the best evidence rules requirement of admitting original documents or exact copies into evidence.
“Rule 1006 [which allows summaries of voluminous documents] thus removes the Best Evidence Doctrine as an impediment to proving the content of voluminous written, recorded, or photographic material by means of a chart, summary, or calculation when the underlying material `cannot conveniently be examined in court.” People v. Wiesneske, 599 NE 2d 1266 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992 (citations omitted)
Instead of admitting the underlying documents you only need to make them available to the other party.
“The language of the Rule [allowing summaries of voluminous evidence], though, does not require that the original voluminous material be introduced into evidence; rather it merely requires that the summarized material be made available to the opposing party…Rule 1006 [which allows a summary of voluminous records] requires the party seeking to summarize the contents of voluminous records to make those records available for examination by other parties” People v. Wiesneske, 599 NE 2d 1266 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992 (citations omitted)
This does not mean you can throw the Rules Of Evidence out the window just because you have turned all of your original evidence into “a chart, summary or calculation.” The underlying data still has to be, theoretically, admissible under the Rules Of Evidence.
The Requirements For Getting A Chart, Summary or Calculation Admitted Into Evidence
“[A] summary of voluminous evidence is admissible only if the underlying materials upon which the summary is based are admissible” People v. Wiesneske, 599 NE 2d 1266 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992
Virtually every document is hearsay and thus, inadmissible in trial.
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c)
“A “statement” is (1) an oral or written assertion.” Ill. R. Evid. 801(a)
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802
Ensuring that the underlying records are admissible is typically done by ensuring that the summary satisfies the business records exception to the hearsay objection.
“The trial court may admit into evidence summaries of voluminous documents where the underlying data upon which the proponent bases the summary satisfies the ordinary business exception, and the trier of fact cannot conveniently examine the contents of the voluminous writings in court.” People v. Universal Public Transp., Inc., 974 NE 2d 251 – Ill: Appellate Court, 1st Dist., 3rd Div. 2012
“The following [is] not excluded by the hearsay rule…A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the opposing party shows that the source of information or the method or circumstances of preparation indicate lack of trustworthiness” Ill. R. Evid. 803(6)
Presumably, a paralegal or other assistant at the law firm will have prepared the “chart, summary or calculation” and can just testify that they made the chart, summary or calculation based on the underlying documents.
The preparer of the chart, summary or calculation need not even appear in court if they have signed an affidavit that the specifies how the chart, summary or calculation “(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice.” Ill. R. Evid. 902(11)
“[T]he party seeking to admit a business record has the burden of laying an adequate foundation for it, which includes showing: (1) that the record was made as a memorandum or record of the act; (2) that the record was made in the regular course of business; and (3) that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter.” People v. Nixon, 36 NE 3d 349 – Ill: Appellate Court, 1st Dist., 5th Div. 2015
More than likely, a spreadsheet will be involved which will require another certification of records generated by an electronic process or system. “A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the procedural requirements for Rule 902(11) certification. The proponent must also meet the notice requirements of Rule 902(11).” Ill. R. Evid. 902(12)
It would be pretty risky to go to trial with only a 902(11) and 902(12) certification and no business records custodian. It is possible that a court would not find that the certification is sufficient foundation to allow for the admission of a summary of voluminous records.
“The party seeking to admit a purported business record into evidence must lay an adequate foundation for the business record, including a showing that the record was made as a memorandum or record of the act; the record was made in the regular course of business; and that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter.” People v. Universal Public Transp., Inc., 974 NE 2d 251 – Ill: Appellate Court, 1st Dist., 3rd Div. 2012 (Citations Omitted)
“In the case of computer-generated records, a proper foundation additionally requires a showing that: standard equipment was used; the particular computer generates accurate records when used appropriately; the computer was used appropriately; and the sources of the information, the method of recording utilized, and the time of preparation indicate that the record is trustworthy and should be admitted into evidence.” People v. Morrow, 256 Ill. App.3d 392, 397
If the foundation for the underlying documents is not perfected, the opposing party will object and the chart, summary or calculation will not be used by the court.
“Opposing counsel may object if the evidence presented fails to support introduction of the evidence being offered or lacks a sufficient foundation.” People v. Universal Public Transp., Inc., 974 NE 2d 251 – Ill: Appellate Court, 1st Dist., 3rd Div. 2012 (Citations Omitted)
“The party seeking to admit a purported business record into evidence has the burden of laying an adequate foundation for the business record.” People v. Nixon, 36 NE 3d 349 – Ill: Appellate Court, 1st Dist., 5th Div. 2015
Even if you get the opposing side to stipulate or admit via a request to admit, the authenticity of the underlying documents, you will want the business records custodian to testify to the method the chart, summary or calculation was prepared so that your chart, summary or calculation has more persuasive weight. Besides, you will need someone to help carry the documents to the courthouse.
In the end, it is up to the trial judge as to whether they think they actually need a chart, summary or calculation in lieu of the underlying documents.
“Implicit in Rule 1006 [allowing a summary of voluminous records] is the notion that the trial court may, in the circumstances of a given case, determine that the jury, or the court in a bench trial, ought to consider the source documents in resolving a fact issue and that, on balance, a summarization of such evidence would not add to or detract from the proper weight or emphasis to be given such source documents.” People v. Wiesneske, 599 NE 2d 1266 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992
Because of the sheer volume of work required if a chart, summary or calculation is not allowed into evidence, it would be wise to file a motion in advance of trial to allow for your chart, summary or calculation to be admitted into evidence akin to a motion for a declaratory judgment.
What If The Court Does Not Allow A Summary Of Voluminous Records Into Evidence
If the court does not allow your chart, summary or calculation then the court has picked it’s poison. Each underlying document can be entered into evidence individually in pain-staking detail. This will take hours. In the end, during closing arguments, you can reintroduce your chart, summary or calculation as a demonstrative exhibit.
Pre-Admissibility Checklist for Rule 1006 Summaries:
- Underlying documents are voluminous
- Original/duplicate documents have been made available to opposing counsel
- Underlying records satisfy business-records exception
- 902(11) and 902(12) certifications properly served
- Preparer available at trial or certification valid
- Consider using the chart, summary or calculation as demonstrative exhibit as a backup
If you have read this far, you will agree that presenting evidence is not like handing in homework. Even when preparing charts, summaries and calculations the Rules of Evidence require that you “show your work” along the way.
To learn more about how to effectively present your case in an Illinois divorce trial, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
