All evidence in an Illinois divorce hearing or trial is supplied by witnesses.
A witness can testify to what the witness directly saw, felt or experienced which is relevant to the issues at trial.
Some witnesses can testify to their opinions if those witnesses are deemed to be experts.
Even non-testimonial documents need a witness to establish their authenticity.
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a)
There is almost nothing that can happen in an Illinois divorce hearing or trial that does not require a witness.
Therefore, a party to an Illinois divorce hearing or trial must know in advance who their opponent’s witnesses will be in order to be fully prepared.
A surprise witnesses is always a bad surprise. Issue interrogatories requesting disclosure of witnesses for this reason if nothing else.
Preparing For Your Opponent’s Witness In An Illinois Divorce Hearing Or Trial
If the evidence is not presented properly (or is common knowledge), an Illinois divorce court cannot consider that evidence when making its ruling.
“A trial court, sitting as the trier of fact, may only consider knowledge acquired through the introduction of evidence or through judicial notice” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003
In a trial you are never supposed to ask a witness a question that you do not already know the answer to. That ensures that your narrative will be consistent with the conclusion you hope the court arrives upon.
However, you cannot know what the answer will be if you do not even know what witness you will be cross-examining. Witnesses for an Illinois divorce hearing or trial should be disclosed well in advance of testimony.
When witnesses are disclosed in advance of a hearing or trial, the other side can depose the witness in advance of the hearing or trial. This allows the other side to know what the witness is likely to say at the hearing or trial…and be properly prepared to rebut that testimony.
“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202
If the witness tells you one thing at the deposition and then testifies to something else at the hearing or trial, that witness can be impeached with the transcript from the deposition.
“Discovery depositions taken under the provisions of this rule may be used only:
(1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness” Ill. Sup. Ct. R. 212(a)(1)
When Should Witnesses Be Disclosed In An Illinois Divorce
Witnesses are only necessary to be disclosed if the other side asks for the witnesses you plan to have testify.
“Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial” Ill. S. Ct. R. 213(f)
Illinois divorce courts should proactively encourage disclosure via a case management conference which requires that “the following shall be considered…
“limitations on discovery including:(i) the number, duration, and means by which depositions may be taken;(ii) the area of expertise and the number of expert witnesses who may be called; and(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions” Ill. Sup. Ct. R. 218(a)(5)
Witness disclosures should happen at least 60 days prior to trial but a party to a divorce may be tempted to propose an agreed order whereby witnesses can be disclosed almost at the last minute before trial.
“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)
What Is Required For Propert Witness Disclosure In An Illinois Divorce Hearing Or Trial?
It is not enough to merely list the “identity and address” of a possible witness. Depending on the kind of witness, additional information must also be furnished.
“A “lay witness” is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify.” Ill. Sup. Ct. R. 213(f)
There must be some kind of description of the potential testimony in the witness disclosure for lay witnesses. But, that description need not be exact.
“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)
Independent expert witnesses must make a similar disclosure of their proposed testimony which must include their proposed opinion.
“An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. 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)
Controlled expert witnesses must disclose their proposed testimony, opinion, their professional qualifications, and any written reports associated with the case.
“A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. 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)
Additionally, once those disclosures are made, they must be appropriately updated as a disclosing party has “a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i)
“[T]he purpose of disclosure is to allow the other party to determine how to proceed. Such decisions include whether to depose a disclosed witness.” Boyd v. City of Chicago, 378 Ill. App. 3d 57, 67 (Ill. App. Ct. 2007)
“[A] party should be allowed to rely on an opposing party’s answer to Rule 213(f) interrogatories and expect that only those witnesses disclosed pursuant to Rule 213(f) will in fact be called to testify at trial regarding the subject disclosed. Rule 213 is intended to provide litigants with a degree of certainty and predictability in the trial process and prevent trial by ambush.” American Service Insurance Company v. Olszewski, 324 Ill. App. 3d 743, 748 (Ill. App. Ct. 2001)(citation omitted)
These disclosures and their required contents are mandatory. “Supreme Court Rule 213 disclosures are mandatory and must be strictly followed, both by the parties and by the court imposing the rules.” Dalan/Jupiter, Inc. v. Draper & Kramer, Inc., 372 Ill. App. 3d 362, 370 (Ill. App. Ct. 2007)
What Happens If Witnesses Are Not Disclosed In An Illinois Divorce Hearing Or Trial?
If a non-disclosed or surprise witness appears at an Illinois divorce hearing or trial, the other side has the opportunity to object.
“The purpose of discovery rules about the timely disclosure of expert witnesses, their opinions, and the bases for those opinions is to avoid surprise and to discourage strategic gamesmanship…. Disclosures are mandated by Rule 213 and strict compliance with the rule’s provisions is required.” Wilson v. Moon, 2019 IL App (1st) 173065
That objection may result in the exclusion of the surprise witness.
“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)
No witness equals no testimony. No testimony equals no evidence.
Even a disclosed witnesses failure to allow themselves to be deposed can result in that witness being barred from testifying. Rosen v. Larken Center, Inc., 2012 IL App (2d) 120589, ¶ 22.
One a witness is barred, it is the sanctioned party’s burden to prove the court made an error.
“Once the trial court has imposed a sanction for noncompliance with a discovery rule, the sanctioned party bears the burden of establishing that the noncompliance was reasonable or justified by extenuating circumstances or events. ” Ruane v. Amore, 287 Ill. App. 3d 465, 472 (Ill. App. Ct. 1997)
No trial is perfect but the more you can control your divorce trial, the better your result.
As Napoleon Bonaparte said “The battlefield is a scene of constant chaos. The winner will be the one who controls that chaos, both his own and the enemy’s.”
So, disclose your witnesses…or your witnesses will not testify. In the alternative, disclose your witnesses by agreement mere days before the hearing so that your opponent cannot be adequately prepared for your witnesses’ testimony.
To learn more about how to prepare for an Illinois divorce hearing or trial, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
