They say that a picture is worth a thousand words. At your Illinois divorce trial, give the judge a picture instead of having your witness drone on.
A document. A report. A picture. Exhibits are all so much more effective than mere testimony alone. Documents corroborate testimony and, thereby, give the testimony more weight.
“’To corroborate’ means to add weight or credibility to a thing by additional and confirming facts or evidence, and ‘corroborating evidence’ means evidence supplementary to that already given and tending to strengthen or confirm it.” In re AP, 688 NE 2d 642 – Ill: Supreme Court 1997
So, while exhibits aren’t necessary. They are always an added bonus to your case.
Plus, an exhibit, once entered into evidence, is now preserved in the record and can be relied upon during an appeal. An appellate court cannot overturn a trial court’s decision for being against the “manifest weight of the evidence” if there is no evidence on record.
If there is evidence on record, whoever has at least some evidence in their favor always wins on appeal. “Even if the reviewing court disagrees with the trial court, or might have come to a different conclusion, the decision of the trial court will not be reversed if there is evidence to support it.” LaGrange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App.3d 1046, 1052.
This is why having an exhibit entered into evidence is so crucial. An admitted piece of evidence can eliminate a second “look back” in an appellate court.
A divorce litigant must attach exhibits to any petition which is based on the exhibit.
“If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.” 735 ILCS 5/2-606
Unfortunately, this is not sufficient to enter a written exhibit into evidence. You cannot just submit documents during an Illinois divorce trial as though you were handing in a homework assignment.
If an exhibit is not properly admitted into evidence, the court cannot consider that exhibit when the court makes a decision. “It is error to permit the trier of fact to consider documents that have not been tendered or admitted into evidence.” Jill Knowles Enters., Inc. v. Dunkin, 80 N.E.3d 743, 749 (Ill. App. Ct. 2017)
The Illinois rules of evidence require that all documents have to be authenticated prior to being submitted into evidence during an Illinois divorce trial.
Authenticating An Exhibit In An Illinois Divorce Trial
Exhibits must be authenticated in an Illinois divorce trial. To authenticate a proposed exhibit, you must lay the foundation that the exhibit is what you say it is.
“In civil cases in Illinois, the basic rules of evidence require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence…Evidence must be presented to demonstrate that the document is what its proponent claims it to be…Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence.” Anderson v. Human Rights Comm’n, 314 Ill.App.3d 35, 42, 246 Ill.Dec. 843, 731 N.E.2d 371 (2000)
Foundation and authentication are two separate concepts but for the purpose of admitting an exhibit into evidence…they are one and the same.
The foundation/authentication required for an exhibit will vary with each proposed exhibit.
“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
“Without proper authentication no document is admissible.” CCP Ltd. Partnership v. FIRST SOURCE FIN., 856 NE 2d 492 – Ill: Appellate Court, 1st Dist., 6th Div. 2006
Usually, a document is authenticated “through the testimony of a witness who has sufficient personal knowledge to satisfy the trial court that a particular item is, in fact, what its proponent claims it to be.” Kimble v. Earle M. Jorgenson Co., 358 Ill.App.3d 400, 415, 294 Ill.Dec. 402, 830 N.E.2d 814 (2005).
Testimony to establish foundation/authentication includes questions such as “do you recognize this?,” “Why was it created?,” “Where was it created?,” and/or “How do you know it is a genuine copy?”
Even if you do not have the document’s author available to authenticate the document, someone familiar with the document can provide circumstantial (not personally known) evidence that they know the document is real.
“In authenticating a document by circumstantial evidence, factors such as appearance, contents, and substance need to be considered.” People v. Towns, 623 NE 2d 269 – Ill: Supreme Court 1993
So, “I know what a phone bill looks like. This is an AT & T phone bill” would be sufficient circumstantial evidence to authenticate a phone bill…if the judge agrees.
Likewise, “I am familiar with what a legitimate cash flow statement looks like and this is the Flintstone company cash flow statement for 2021” if testified to by a non-accountant would probably not be sufficient authentication.
Once you believe the authenticity has been established you need only say “Your honor, at this time I would like to submit this item marked as Petitioner’s Exhibit A into evidence.” The judge will then allow your opponent the opportunity to object to the admission of your proposed exhibit. However, if you authenticated the exhibit properly, the admission should be a foregone conclusion.
Authentication of exhibits is simply the assurance that the document is real and the information contained therein is relatively trustworthy enough to be weighed at all.
“A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied.” People v. Downin, 828 NE 2d 341 – Ill: Appellate Court, 3rd Dist. 2005
Your opponent can still attack your authenticated exhibit as being unreliable, contradictory or prejudicial.
It is important to understand authentication as a concept in order to understand the body of Evidence law as a whole. All of the rules of evidence spring from the requirement of authentication. For example, hearsay (an out-of-court statement by a party not present) is really just an unauthenticated statement. That’s why all the exceptions to hearsay: business records, excited utterance, recorded recollections, etc., are just hearsay with the addition of an authenticating element. Likewise, anything unauthenticated is inherently more prejudicial than probative…because unauthenticated evidence is not probative at all.
Stipulating To Exhibits In An Illinois Divorce
This dance of authenticating documents in court is a lot of fun…if you know how to do it. Properly authenticating a document demonstrates that you know how to competently conduct a trial (which is rare). But, authenticating every document is also stressful…and pointless if your opponent is a true professional. Most divorce parties’ should just stipulate to documents authenticity if there really is no doubt as to their veracity (and there never is).
“The general rule is that litigants may stipulate regarding matters involving the individual rights of the litigants themselves…Courts look with favor upon stipulations which are designed to simplify, shorten or settle litigation and save the costs of the parties. Furthermore, matters subject to stipulation may relate to procedural or even evidentiary matters.” Swank v. Bertuca, 353 NE 2d 415 – Ill: Appellate Court, 4th Dist. 1976
Why wouldn’t you just stipulate to a document’s authenticity instead of waiting for your opponent to drag in the author of the document, listen to the author drone on and then finally have the document authenticated and admitted anyways?
After discovery is closed in your case, immediately proposed stipulations as to the documents authenticity (but not as to what the documents purport to say, that should still be argued)
Keep in mind that just because the other side turned over a document you want to use in their discovery does not mean the document is automatically agreed to as authentic.
While the production of a document may be a tacit agreement to authenticity in other jurisdictions, there is “no Illinois authority laying out a similar rule[. There is] no authority whatsoever for its assertion that documents produced in discovery should be considered authenticated. In the absence of any argument citing such authority, we will not create the rule validating authentication by production in Illinois.” Complete Conference v. Kumon North America, 915 NE 2d 88 – Ill: Appellate Court, 2nd Dist. 2009
If the other side is not a jerk, they will sign your stipulation as to the authenticity of the exhibits.
If the other side is a jerk…you can force them to stipulate to the authenticity of the exhibits in advance with a well-timed Request To Admit.
Request To Admit Authenticity Of Exhibits
While stipulations are nice, there is no need for them if you issue a request to admit that the documents are genuine.
“A party may serve on any other party a written request for admission of the genuineness of any relevant documents described in the request. Copies of the documents shall be served with the request unless copies have already been furnished.” Ill. Sup. Ct. R. 216(b)
The other side will begrudgingly admit that “yes, the documents are real…and they’re fabulous” via the response to your request to admit.
Should the other side fail to admit to the genuineness of the documents, the documents will be deemed admissible anyways after 28 days of non-response.
“Admission in the Absence of Denial. Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either [a denial or an objection]” (emphasis mine) Ill. Sup. Ct. R. 216(b)
Should the opposing side overtly deny the genuineness of a document without good cause…and the document is later properly authenticated, the opposing side will be subject to sanctions for signing said denial.
“The signature of an attorney or party constitutes a certificate by him that he has read the…document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact…and that it is not interposed for any improper purpose, such as…to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137(a)
Subsequent to authenticating the document after a denial of authenticity, the expense of authenticating the document (the witness’s fees and the lawyer’s fees spent authenticating) will be the responsibility of the person who failed to reasonably admit that the document was authentic.
“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)
What a breeze! No more worries about properly authenticating a document days before trial…so long as you have issued proposed stipulations and/or a request to admit to the genuineness of the documents. If you would like to make your divorce trial that much easier, contact my Chicago, Illinois family law firm to speak with an experienced divorce trial lawyer.
