Uh oh … Will Supreme Court Rule 213 Become Old Rule 220?

April 8, 2011


Illinois Supreme Court Rule 220 no longer exists. It was eliminated because it became watered down and unworkable. Rule 220 was intended to provide a responsible framework for the disclosure of expert witness opinions. Over time, the reviewing courts in Illinois created exception after exception to the rule. Eventually, everyone agreed the rule had become ineffectual.

Thus sprang forth Illinois Supreme Court Rule 213, implemented to replace Rule 220. With some adjustments here and there, Rule 213 has been reasonably effective in setting out a clear, understandable and workable outline for expert discovery. A key to its potency has been its mechanism to bar experts whose opinions had not been properly disclosed.

Under Rule 213(f)(1), a party’s disclosure of non-experts “must identify the subjects on which the witness will testify.” Under 213(f)(2) and (3), a party’s disclosure of experts (either retained or independent experts) “must identify the subjects on which the witness will testify and the opinions the party expects to elicit” from the witness. [Note: This is the language applicable to independent experts; the language applicable to retained experts is similar but even more specific and also requires the bases for the opinions be disclosed.]

Rule 213 appears to be very clear that a party must be specific in identifying expert opinions. Of course, case law has also established that an expert “may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 757 N.E.2d 533 (2001). Nevertheless, the opinion must be disclosed (along with the bases for the opinion).

Recently, in Timothy Whelan Law Associates, Ltd. v. Kruppe, ___ Ill. App. 3d ___ (2d Dist. No. 2_09_1234 March 31, 2011), the Second District Appellate Court issued a decision which opens a hole in Rule 213’s requirement that an expert’s opinions must be fully disclosed in advance of a trial. This was a lawsuit seeking collection of a lawyer’s unpaid fees. The plaintiff, an attorney, was identified in his Rule 213(f) disclosures as a witness who would testify

“regarding the existence of a contract between plaintiff and defendant, the nature of the services provided, and the damages it incurred as a result.”

At trial, the plaintiff/attorney was permitted to testify that the fees he charged to his client, the defendant, were reasonable. Clearly, the Rule 213(f) disclosure did not explicitly state he would so testify. The defendant objected to this trial testimony as not having been disclosed under Rule 213. The trial court overruled the objection, however, indicating the opinion was encompassed within the Rule 213 disclosure.

The appellate court sustained the trial court, finding that because the plaintiff had disclosed he would testify “regarding” his damages, that would reasonably include giving an opinion that his fees were reasonable.

I dissent.

There should be little doubt that the plaintiff’s Rule 213 disclosure was not sufficient to allow the opinion testimony permitted by the trial court. In fact, the plaintiff’s Rule 213 disclosure could only meet the requirement of Rule 213(f)(1), applicable to non-expert witnesses, that only the “subjects on which the witness will testify” be provided. Merely disclosing an expert will testify “regarding” an element of the cause of action does not indicate what that testimony will be or if it will be an expert opinion. If the disclosure made by plaintiff in the Whelan case had been for a non-expert witness, it would have been sufficient. The fact it was being offered as a disclosure of an expert witness opinion, however, requires more specificity and detail.

The modest disclosure that the plaintiff would testify “regarding” damages not only fails to identify the opinion regarding damages which was intended to be offered at trial, but it also fails to identify the bases for any such opinion (as required by Rule 213(f)(3)).

“The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Rule 213 requires full disclosure of experts’ opinions and the bases for those opinions, and any deviation from the rule should not be allowed, even if proffered “in the interests of justice.” Dept. of Transp. v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998).

Illinois appellate courts have previously dealt situations similar to the Whelan case and found very general, non-specific disclosures to not comply with Rule 213. In Kim v. Mercedes_Benz, 353 Ill.App.3d 444, 818 N.E.2d 713 (2004), the court held a plaintiff’s general disclosure that he would testify at trial “about the matters alleged in plaintiff’s complaint” is insufficient and does not give adequate notice to the defendant of the plaintiff’s intention to offer opinions regarding his damages. Additionally, in Lisowski v. MacNeal Memorial Hospital Assn., 381 Ill.App.3d 275, 885 N.E.2d 1120 (2008), the court ruled where the plaintiff’s Rule 213 disclosures only indicated the expert would testify to “all of the other problems” of the plaintiff, but the topics “depression” and “suicide” were never mentioned in the disclosures, the catchall phase “all of the other problems” was found to not be specific enough to meet the strict requirements of Rule 213, so the expert was properly barred from testifying that plaintiff became suicidal and depressed.

The Second District’s decision in Whelan backs off of Rule 213’s strict requirements of full and complete disclosure of expert opinions. Let’s hope the decision becomes an isolated, unaccepted part of Rule 213’s background. Otherwise, we should already start thinking about which rule is going to replace Rule 213 — just as Rule 213 replaced old Rule 220.


Illinois Adopts Rules of Evidence

October 4, 2010


Until now, the admissibility of evidence in Illinois was primarily governed by the developing case law of reviewing court decisions. Recently, however, the Illinois Supreme Court adopted formal, codified Rules of Evidence. These Rules take effect January 1, 2010. A copy of the Rules may be found here:


As an older lawyer who has worked with the case law pronouncements of our evidentiary rules, I do not fully understand why formal, codified Rules of Evidence must now be imposed. This is especially true given the fact that the Rules of Evidence, as stated in the Commentary accompanying the Rules indicates that these codified Rules for the most part merely restate the case law development of evidentiary rules. In any event, this is the statement  of the Supreme Court committee as to why these Rules were promulgated:

Currently, Illinois rules of evidence are dispersed throughout case law, statutes, and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources. Trial practice requires that the most frequently used rules of evidence be readily accessible, preferably in an authoritative form. The Committee believes that having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved. The Committee further believes that the codification and promulgation of the Illinois Rules of Evidence will serve to improve the trial process itself as well as the quality of justice in Illinois.

Truthfully, I don’t believe the presence of these Rules will significantly affect trial practice. Analogous to the adage, “the devil is in the details,”  trial court rulings on the admissibility of evidence will depend on how the appellate courts interpret the general statements of law found in these Rules of Evidence. To the extent that will be founded upon the pre-Rules of Evidence case law, I guess I won’t have to throw out my case law trial book which is 600 pages long in 10 point type and which I have maintained for the last 25 years — thank goodness.

When Negligence Becomes Manslaughter

July 22, 2010


I’ve been following the New York criminal trial of a crane master rigger. He was charged with seven counts of manslaughter after a crane which he “jumped” had collapsed, causing the deaths of several workers. Today, the judge entered not guilty verdicts in favor of the rigger on all seven counts. I’m sure that is one relieved construction worker who never thought he could end up in a criminal courtroom for his acts on a construction site. Here is a copy of the first report of the verdict from New York Construction.com:  http://is.gd/dConm
I have grave concerns about any time when someone is criminally charged with an offense after some type of accident. This crane rigger, for example, appeared to have gotten swept up in a political issue of crane safety in New York City which might have played some role in having him criminally charged for his actions. New York has been the site of several crane collapses in recent years, each of which has caused an uproar about safety. These incidents have drawn a great deal of attention on the City’s inspection procedures. When that type of focus is aimed at a governmental unit, the result can be politically based decisions to criminally prosecute in order to draw away the fire from the government.
I’ve experienced other situations in which there a civil suit has been filed or was about to be filed but in which there have also been pending criminal prosecutions. Much of the time, this occurs following a serious motor vehicle accident so it is almost a routine action. Nevertheless, there is sometimes much pressure brought to bear on the prosecutors by the victim’s civil attorney to obtain a conviction. If it is minor traffic offense, then a finding of guilty after the defendant pleaded not guilty will not be admissible as evidence in a later civil suit. The law on that issue is as follows:
It is the general rule in Illinois that a plea of guilty to a traffic citation is admissible at a subsequent civil proceeding as evidence of the defendant’s admission to guilt of the underlying incident, but that a conviction for the same offense following a not guilty plea cannot be considered evidence in the later civil proceeding. Thurmond v. Monroe, 159 Ill.2d 240, 636 N.E.2d 544, 201 Ill.Dec. 112 (1994); Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988); Hengles v. Gilski, 127 Ill. App. 3d 894, 469 N.E.2d 708 (1984), relying on Smith v. Andrews, 54 Ill.App.2d 51, 62, 203 N.E.2d 160, 166 (1965); Hartigan v. Robertson, 87 Ill. App. 3d 732, 738, 409 N.E.2d 366, 371 (1980). The guilty plea is treated differently than a conviction following a not guilty plea because the plea of guilty is taken as a judicial admission made by the defendant. Spircoff v. Stranski, 301 Ill.App.3d 10, 703 N.E.2d 431, 234 Ill.Dec. 570 (1st Dist. 1998).
In a few of the situations I’ve seen where a plaintiff’s lawyer is putting pressure on a prosecutor, that pressure is directed to seeking a guilty plea (so it can be used as evidence in the civil suit) rather than on obtaining a conviction to see that “justice is done.” I can’t blame the plaintiff attorneys for this as it is attempting to obtain the best position for their clients in the civil case.
The real problem is the role of prosecutors in attempting to assuage public or political outcry by carrying out prosecutorial discretion in a manner which deviates from the normal exercise of discretion.
I cannot make a definitive statement about the motivations of the New York prosecutors in pressing criminal charges against a construction worker. All I know is that when the political system gets involved in attempting to find “justice” following accidents, we should all be careful.


Jackson v. Reid: Party Experts and Bases For Their Opinions

June 1, 2010

A new opinion out of the third district appellate court clarifies some evidentiary and witness rules at trial. The decision is Jackson v. Reid, ___ Ill. App. 3d ___ (3d Dist. No. 3–09–0512 May 24, 2010). It can be found on the Illinois courts’ official website at http://www.state.il.us/court/Opinions/AppellateCourt/2010/3rdDistrict/May/3090512.pdf

The case holds as follows:

(1) A party who is also disclosed as an expert under 213(f)(3) must disclose his/her research and publications reviewed, regardless of whether the material is solely relied upon by the witness in support of his/her opinions. Further, the opposing party has the right to fully cross-examine the party-witness on those results. The court makes clear that research done by a party-expert (whether to educate the party’s attorney or for the party’s own opinions) is not protected by attorney-client or work product privileges.

(2) A chart prepared by the author of an article which merely summarizes certain professional guidelines but does not state them precisely (word for word) cannot be admitted as an independent evidentiary exhibit as it does not represent the actual guidelines or industry standards authorized and issued by the professional society. In “Illinois, scientific and medical treatises are hearsay and are inadmissible as proof of the statements contained therein.”

(3) One cannot admit medical records as business records unless there is a witness who can testify that he/she is familiar with the doctor’s record-keeping practices, the records were made in the regular course of business, and it was the regular course of the business to make such records (per Supreme Court Rule 236).

Bases for Jurors’ Verdicts

December 29, 2009

Two recently issued appellate court cases come down on different sides of the issue of how much leeway to give jurors in assessing the value of cases before them.

Case #1: Jury’s Verdict Upheld although no competent proof provided

The First District Appellate Court just issued one of those opinions which makes one scratch his head and wonder what lesson is to be learned. Among other significant issues, the appellate court in Diaz v. Legat Architects, Inc., ___ Ill. App. 3d ___ (1st dist. Nos. 1-08-3622 & 1-08-3635 Cons. December 14, 2009) was faced with a trial judge who entered a remittitur of a jury verdict by eliminating the award for future medical expenses. The trial judge ruled that the plaintiff had failed to present competent proof of the costs of future expenses after the court struck the testimony of a physician because he could not state with reasonable certainty what those expenses would be.

The appellate court agreed with the trial court that the testimony of the physician witness should be stricken as speculative. One would think that ends the matter, but the appellate court still ended up awarding the jury’s award for future medical expenses. As best I can tell, there is no good explanation for the appellate court’s decision in this regard. The appellate court merely noted the following: “Given that his past medical bills were $132,000 for the 6 years between his accident and the trial in this case and that his life expectancy was 21 years, an award of $201,000 for future medical expenses was supported by the evidence.”

It is difficult to understand how the jury’s award of future medical expenses could have been proper if the appellate court just held that there was no competent evidence (i.e., testimony of an expert physician) to support the claim for future medical expenses. In essence, the appellate court seems to be saying that because the plaintiff had past medical expenses and the doctors testified he would need future medical care, it is acceptable to let the jury guesstimate the amount of future expenses.

The opinion includes several other substantive holdings, each of which is independently important, but the issue relating to the proof of future medical expenses is disturbing. Jury verdicts must be based on competent proofs and if either party neglects to put in that evidence, then the jury can’t be permitted to just “eyeball” it.

Case #2: Jury’s Verdict stricken as based on prejudicial appeals to emotion

The First District issued a second important case on the same day as Case #1 in Pleasance v. City of Chicago, ___ Ill. App. 3d ___ (1st dist. No. 1-08-1510 December 14, 2009). This was a suit filed on behalf of a man who was killed following a wrongful shooting by a Chicago police officer. In a case against a governmental entity, the city cannot be held liable unless it was shown that the action was willful and wanton misconduct. Rather than fight on the issue of liability, however, the City admitted liability in order to proceed to trial solely on the evaluation of appropriate damages. The jury submitted a verdict of $12.5 million.

On appeal, the City argued that the jury’s verdict was the result of improper comments made by the plaintiff’s attorney which repeatedly referred to the extreme nature of the police officer’s conduct, in spite of a motion in limine preventing such comments. The trial court permitted too many of those comments in spite of objections by the defense. The plaintiff’s closing argument pleaded that it was the jury’s duty to defend the legal system from “abuse” and “injustice,” that it should send a message to the community regarding police conduct in general, that it needed to analyze how the police subverted our laws, and to consider the police officer’s conduct or state of mind. Plaintiff’s counsel even quoted Martin Luther King, Jr. By suggesting the jury needed to do justice to make up for the police department’s manner of conduct. Plaintiff’s counsel made several references to the officer’s conduct as willful and wanton.

The appellate court agreed with the defendant, reversing the judgment entered on the jury’s verdict and ordering a new trial. The appellate court strongly emphasized that verdicts cannot be the result of appeals to passion or emotion. It also noted that whether the police officer’s conduct was willful and wanton was irrelevant because the City had already admitted liability. Determining whether the officer acted willfully and wantonly could only properly serve to determine if the defendant should be held liable, which was already moot because of the admission of liability.

The appellate court quoted an elegantly stated passage from an earlier case as follows:

“The province of the jury is the resolution of factual issues in the narrow context of the case before them, not the rendering of moral or social judgments in the verdict form. The purpose of argument by counsel is to assist the jury fairly, deliberately and impartially to arrive at the truth of the facts submitted to them for their decision. It is error for counsel to indulge in assertions which appeal to the passions of the jury and have no bearing or relation to the case whatsoever.”

I know the attorney who represented the plaintiff in this case and I know him to be a truly excellent lawyer and a good person. I saw him on television soon after the opinion was issued and he complained that the appellate court was wrong in its holding and that the opinion does an injustice to those who have been harmed. Respectfully, I disagree, and this should not be a plaintiff vs. defendant issue. All of us should strive to have verdicts which are not the result of passion or emotion, and if an improper verdict is entered because of those emotions, it is properly voided. There is no doubt whatsoever that the plaintiff attempted to appeal to those emotions by making reference to things which were not in evidence and were irrelevant to the decision making process.

In my opinion, the judges who decided Case #1 have a different perspective than those who decided Case #2. The second case is founded upon the concept that jurors shall reach conclusions based only upon relevant, competent proof. The first case assumes that even when there is a failure of proof, the court must step in to protect the injured party to allow the jury to decide on a non-evidentiary basis.

One of my mentors told me early in my career that whatever is relevant to the case must be allowed to see the light of day. He told me that if that evidence is harmful to my client, “let the chips fall where they may” but at least the justice system must be protected. In order to promote understanding and respect for our legal system, we must insist that “competent evidence” rule the day — let the chips fall where they may.