Opinion Witnesses In An Illinois Divorce

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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Questions That Call For A Conclusion In An Illinois Divorce

Opinion Witnesses In An Illinois Divorce

When someone is giving testimony in an Illinois divorce hearing or trial, the point of the questions is for the finder of fact, the judge, to come to a legal conclusion. The questions, however, cannot call for a conclusive answer. In an Illinois divorce trial, questions are supposed to elicit facts, known and experienced by the witness.

Questions that call for a conclusion ask for an additional logical step be taken by the witness beyond what they know and experienced.

For example, “was what your husband said true?” is not a question that calls for a conclusion.

However, “was your husband lying?” does call for a conclusion.

This is confusing. But the ability to object to a question because it elicits a conclusion presents a powerful tool for curtailing questions that imply or directly state conclusions that hurt your Illinois divorce case.

Opinion Testimony In An Illinois Divorce Case

Conclusive questions are really asking the witness for their opinion. Words in a question like “conclusion,” “opinion,” “judgment,” “probably” are eliciting opinions.

Furthermore, other characterizations in a question call for opinions. Words like “drunk,” “proper,” “improper,” ”guilty,” “vulgar,” “careless,” “negligent,” and “unreasonable” are signs that the question is likely calling for a conclusion.

“[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

When a question calls for a conclusion, the opposing attorney can say “Objection! Calls for a conclusion” or “Objection. The witness is providing an opinion without being qualified as an expert.”

Some level of opinion testimony is permitted under the Illinois Rules of Evidence.

“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Rule 701 – Opinion Testimony by Lay Witnesses, Ill. R. Evid. 701

Some things simply can’t be discussed without making an opinion. For example, “How did he look?” having the answer “He looked angry” may call for an opinion as to the other person’s mental state but what is the witness supposed to say? “His brow was furrowed and he was snarling?” This isn’t a natural way of speaking and Illinois law allows for these types of opinions.

“Lay witness opinion testimony is admissible where the facts could not otherwise be adequately presented or described to the fact finder in such a way as to enable the fact finder to form an opinion or reach an intelligent conclusion.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994

Opinions are allowed when the opinion is obviously based on the facts. Therefore, the opinion isn’t telling the finder of fact anything new.

If a “conclusion drawn by the witness was not an obvious one under the facts, …it went beyond the realm of mere sensory perception or observation [and is therefore inadmissible]” People v. McCarter, 897 NE 2d 265 – Ill: Appellate Court, 1st Dist., 6th Div. 2008

There is a general list of items that a lay witness may opine on in an Illinois trial.

“Lay witnesses may relate their opinions or conclusions on what they observed because it is sometimes difficult to describe a person’s mental or physical condition, character or reputation, or the emotions manifest by his or her acts; or things that occur and can be observed, including speed, appearance, odor, flavor, and temperature.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994

You’ll notice that this list is one of opinions that are based on the witness’s own perceptions and senses.

“The limitation that lay witness opinion testimony be rationally based on the witness’ perception reflects the general requirement that a witness must have personal knowledge of the matter to testify to it….The testimony must be based on concrete facts perceived from the witness’ own senses.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994 (citations omitted)

In a divorce case, the valuation of items that will be equitably divided is often a matter of opinion.

“[A] lay witness may give an opinion as to the value of personal property only if he has sufficient personal knowledge of the property and its value.” Wausau Insurance Co. v. All Chicagoland Moving & Storage Co., 333 Ill.App.3d 1116, 1128, 268 Ill.Dec. 139, 777 N.E.2d 1062 (2002)

“The valuation opinion of a lay witness will be admitted only upon an adequate showing of the factors on which he bases his testimony.” Kim v. Mercedes-Benz, USA, Inc., 818 NE 2d 713 – Ill: Appellate Court, 1st Dist., 4th Div. 2004

Valuation testimony is a good example of how you can get almost any lay witness opinion into evidence. It would be impractical or impossible to describe all of the similar items one used to compare value, so an opinion is essentially a summary of all the witnesses known information. Isn’t every opinion really like that?

“The ground upon which such opinions are held to be admissible is the impossibility or difficulty of reproducing the data observed by the witnesses” State Farm Mut. Auto. Ins. Co. v. Short, 260 NE 2d 415 – Ill: Appellate Court, 5th Dist. 1970

Witnesses often can quote an out of court statement through one of the many hearsay exceptions but they are not to interpret a statement as that would provide an opinion regarding the statement.

“[W]hen a witness testifies as to an out-of-court statement, he is required to recite it as accurately as possible without offering his opinion as to what that statement might mean.” People v. McCarter, 897 NE 2d 265 – Ill: Appellate Court, 1st Dist., 6th Div. 2008

Clearly, lay witness opinion testimony is extremely contextual and dependent on the facts of each case and how the witness opines on those facts.

“[T]he admissibility of the opinion testimony depended upon the facts observed and testified to, and that such testimony was admitted only to the extent that it was based upon those facts which the witness had observed, and to which he had testified.” People v. Smothers, 302 NE 2d 324 – Ill: Supreme Court 1973

Importantly, for a divorce trial, witnesses can be asked “How do you think this court should rule and why?” without the question being objected to as an opinion.

“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Rule 704 – Opinion on Ultimate Issue, Ill. R. Evid. 704

Expert Witnesses In An Illinois Divorce

Expert witnesses provide expert opinions without having personal knowledge of the facts. The expertise is deemed sufficient to analyze data and provide a reliable opinion which the court can consider as evidence in itself.

Expert witnesses are common in an Illinois divorce where matters of great value are at stake. Specifically, business valuations and mental health evaluations commonly require an expert to offer a qualified opinion.

“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. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.” Rule 702 – Testimony by Experts, Ill. R. Evid. 702

“Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence.” Snelson v. Kamm, 787 NE 2d 796 – Ill: Supreme Court 2003

An expert can provide an opinion but the expert should explain how they came to that opinion if they want their opinion to be adopted by the court.

“When an expert testifies simply that plaintiff should win but is unable to support that conclusion with reasoned analysis, the expert’s testimony is worthless, provides no assistance to the [finder of fact], and should be stricken.” Kleiss, 297 Ill.App.3d at 174, 231 Ill.Dec. 700, 696 N.E.2d 1271.

An expert is not required to explain all the data that led them to their opinion, however.

“The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Rule 705 – Disclosure of Facts or Data Underlying Expert Opinion, Ill. R. Evid. 705

An expert opinion is by no means an unimpeachable opinion.

“So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses.” People v. Enis, 564 NE 2d 1155 – Ill: Supreme Court 1990

Experts almost always make an opinion in regards to the ultimate issue before the court and this is perfectly acceptable.

“[N]o harm is done by the expression of expert opinion bearing directly upon the ultimate issues. The trial court is not required to accept the opinion of the expert .” Marcus v. Marcus, 320 NE 2d 581 – Ill: Appellate Court, 1st Dist. 1974

In divorce, valuations of complicated assets can only be arrived at by selling the asset. Many assets aren’t saleable because they are held in partnership with third parties. Or, one party may wish to retain the asset (especially if the asset is a business). In such cases, only expert testimony can aid the finder of fact in placing a value on a complicated asset such as a business.

“Placing a fair market value on the professional corporation is an art, not a science, and the court must rely on expert witnesses to assist it in this difficult task. There is no exact formula that can be applied, so the trial court must rely on experts who may differ significantly in both methodology and valuation. The trial court must consider the relevant evidence before it; determine the credibility of the experts, the reasonableness of their testimony, the weight given to each of them, and their expertise in the particular area of valuation; and then determine fair market value.” In re Marriage of Gunn, 598 NE 2d 1013 – Ill: Appellate Court, 5th Dist. 1992

Experts regarding mental health and the best interests of children get their opinions admitted almost automatically.

“The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects” 750 ILCS 5/604.10(b)

If a party does object to the automatic inclusion of the professional’s report, the professional can introduce their report after testifying in court. “A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)

Furthermore, a Guardian Ad Litem’s report is nothing but opinion and it is automatically admissible. “The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child” 750 ILCS 5/506(a)(2)

Likewise, a Guardian Ad Litem’s opinons maybe automatically admissible but they are also rebuttable via cross-examination. “The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506(a)(2)

How To Prepare For Opinions In An Illinois Divorce Trial

It’s easy to know if a witness will provide an opinion in advance of trial. Just ask the opposing side what witnesses they’ll be calling and what opinions they’ll be providing via interrogatory.

“Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:(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.(2)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.(3)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.” Rule 213 – Written Interrogatories to Parties, Ill. Sup. Ct. R. 213

If you’ve got an Illinois divorce trial coming up, contact our Chicago, Illinois family law firm to learn more about trial strategies that will get your opinion evidence in and keep your spouse’s opinion evidence out!