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Posted on May 22, 2023

Independent Vs. Controlled Expert Witnesses In An Illinois Divorce

A trial is “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding” Black’s Law Dictionary (11th ed. 2019)

Witnesses are needed to provide the court with evidence. Evidence is mostly testimony in an Illinois divorce trial. Additionally, no physical evidence can be examined without testimony authenticating that evidence. Authentication is testimonial “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a).

Surprise witnesses are highly discouraged in an Illinois divorce trial. In fact, surprise witnesses are forbidden…but only if the other side asked about witnesses in an interrogatory.

“Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial” Ill. S. Ct. R. 213(f)

Many (but not all) Illinois divorce judges will require an exchange of witnesses at a case management conference to prevent any possibility of a surprise witness.

“[T]he court shall hold a case management…[where]the following shall be considered:

(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)

Illinois Supreme Court Rule 213(f) governs how witnesses must be disclosed and categorized in an Illinois divorce.

“The supreme court rules on discovery are also mandatory rules of procedure that courts and counsel must follow… To allow either side to ignore Rule 213’s plain language defeats its purpose and encourages tactical gamesmanship.” Department of Transp. v. Crull, 690 NE 2d 143 – Ill: Appellate Court, 4th Dist. 1998 (citations omitted)

“Rule 213 provides for the timely disclosure of expert witnesses and their opinions in order to avoid surprise and discourage strategic gamesmanship. Its disclosures are mandatory and strict compliance is required.” In re Davon H., 44 NE 3d 1144 – Ill: Appellate Court, 1st Dist., 5th Div. 2015(citations omitted)

“The purpose of [Rule 213(f)]is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial. The paragraph divides witnesses into three categories, with separate disclosure requirements for each category.” Ill. S. Ct. R. 213(f), Committee Comments

The three categories of witnesses are lay witnesses, independent expert witnesses and controlled expert witnesses.

(1)Lay Witnesses. 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. 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. S. Ct. R. 213(f)

“Lay witnesses” include persons such as an eyewitness to a car accident. For witnesses in this category, the party must identify the “subjects” of testimony-meaning the topics, rather than a summary. An answer must describe the subjects sufficiently to give “reasonable notice” of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. In the above example, a proper answer might state that the witness will testify about: “(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident.” Ill. S. Ct. R. 213(f), Committee Comments

Lay witnesses are any witness without an expert opinion. Lay witnesses are subject to the numerous objections provided by the rules of evidence to keep out opinion, conclusive answers, speculation and other matters they did not, personally, experience.

“[T]he general rule is that testimony of a witness’ opinion is not admissible into evidence” People v. Brown, 558 NE 2d 309 – Ill: Appellate Court, 1st Dist. 1990

Opinions are important when you are conducting an Illinois divorce trial. The whole point of the trial is for the judge to adopt your opinion. An Illinois divorce judge is not going to agree to your valuation of a marital asset, imputation of income, or opinion on parenting skills without some expert providing a reasonable bases for that opinion.

Opinions can be entered as evidence only if the witness demonstrates some expertise in the field upon which they are opining. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ill. R. Evid. 702

Those expert witnesses and their expertise must be disclosed to the other side. Expert witnesses must be disclosed and categorized as either “independent expert witnesses” or “controlled expert witnesses”

Independent Expert Witnesses. 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. S. Ct. R. 213(f)

It is not enough to disclose an expert witness. A divorce litigant must also disclose “the subjects on which the witness will testify and the opinions the party expects to elicit.”

“Independent expert witnesses” include persons such as a police officer who gives expert testimony based on the officer’s investigation of a car accident, or a doctor who gives expert testimony based on the doctor’s treatment of the plaintiff’s injuries. For witnesses in this category, the party must identify the “subjects” (meaning topics) on which the witness will testify and the “opinions” the party expects to elicit.” Ill. S. Ct. R. 213(f), Committee Comments

Independent experts are also called “court’s witnesses.” It is very common for the court to appoint an independent financial expert to accurately determine a divorcing couple’s assets and income.

“The court may seek the advice of financial experts or other professionals, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine as a witness any professional consulted by the court designated as the court’s witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both.” 750 ILCS 5/503(l)

Independent expert witnesses are not paid for and/or controlled by the litigant calling them for testimony. The litigant does not know everything the independent expert witness will say. Therefore, the litigant does not need to disclose exactly what the testimony will be.

“The limitations on the party’s knowledge of the facts known by and opinions held by the witness often will be important in applying the “reasonable notice” standard. For example, a treating doctor might refuse to speak with the plaintiff’s attorney, and the doctor cannot be contacted by the defendant’s attorney, so the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor’s opinions. In these circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor’s compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer’s initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness’ apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of the opinions the party expects to elicit” Ill. S. Ct. R. 213(f), Committee Comments

“Unlike a Rule 213(f)(3) controlled expert witness, the basis for a Rule 213(f)(2) independent expert witness’s opinion need not be disclosed. Rather, Rule 213(f)(2) requires only the disclosure of `the subjects on which the witness will testify and the opinions the party expects to elicit.'” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

Controlled expert witnesses are being paid for by the litigant. So, the litigant is expected to know exactly what the controlled expert witness will say…and disclose it appropriately.

“Controlled Expert Witnesses. 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. S. Ct. R. 213(f)

“Controlled expert witnesses” include persons such as retained experts. The party can count on full cooperation from the witnesses in this category, so the amended rule requires the party to provide all of the details required by the former rule. In particular, the requirement that the party identify the “subject matter” of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone.” Ill. S. Ct. R. 213(f), Committee Comments

“Rule 213(f)(3) requires parties to furnish, among other things, the subject matter, conclusions, and opinions of controlled expert witnesses who will testify at trial.” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

“Disclosure of a retained expert witness’ opinions and the basis for that opinion is a bright line rule and must be followed.” Morrisroe v. Pantano, 2016 IL App (1st) 143605 (Internal quotation marks omitted.)

“[I]f an opinion is important to the theory of one’s case, it is essential that it and the bases [for it] be disclosed.” Tirado v. Slavin, 439 Ill. Dec. 264, 276 (Ill. App. Ct. 2019)

Specificity is required when disclosing a controlled expert’s proposed testimony. Vague descriptions of the subject matter, conclusions, opinions, bases, qualifications and reports will not suffice as proper disclosure.

“Providing the basis of a controlled-expert’s opinion in a “catch-all” provision does not comply with the disclosure requirements of this rule.” Nedzvekas v. Fung, 872 NE 2d 431 – Ill: Appellate Court, 1st Dist., 2nd Div. 2007

If a controlled expert witness encounters new bases for their opinion after the initial disclosure, those new bases must be disclosed.

“A 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)

If a witness is not disclosed properly, that witness will not testify.

If an expert witnesses’s expertise, subject matter, conclusion, opinion, bases for that conclusion, qualifications and relevant reports were not properly disclosed, the expert witness may not be able to provide their opinion via testimony in court.

“Rule 213(g) limits expert opinions at trial to the information disclosed in answer to a Rule 213(f) interrogatory, or at deposition.” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

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. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct. R. 213(g)

Disclosure of opinions and their bases need not be exhaustive. An expert can opine on matters that are, logically, in the same realm of study as the subject matter which was disclosed.

“According to Rule 213(g), an expert’s opinions at trial are limited to the disclosures provided in a Rule 213(f) interrogatory or during a discovery deposition. Information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial. An expert witness may expand upon a disclosed opinion provided that the testimony states a logical corollary to the disclosed opinion and not a new basis for the opinion.” Taylor v. County of Cook, 957 NE 2d 413 – Ill: Appellate Court, 1st Dist., 4th Div. 2011

An expert witness whose testimony has been limited by a Rule 213(g) objection can still be asked their opinion by the other side but only as to opinions which were disclosed.

“Without making disclosure under this rule, however, a crossexamining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.” Ill. S. Ct. R. 213(g)

Proper disclosure of witnesses is crucial in an Illinois divorce. Be sure that your attorney knows how to properly disclose the witnesses necessary to win your case…or you will not be able to use your witnesses at all. To learn more, contact my Chicago, Illinois family law firm to talk to 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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