What’s got everyone talking? It’s Illinois Supreme Court Rule 213, which deals with, ultimately, which opinions are improperly admitted at trial.

It’s part of the wholesale change of the discovery rules that took effect Jan. 1, 1996, including a three-hour limit on depositions; a limit of 30 interrogatories; a continuing duty to supplement; and Rule 213, which governs all "opinion witnesses," replacing Rule 220's expert witness requirements.

Virtually all aspects of discovery in civil litigation were impacted, marking the first substantial amendments since their adoption in 1934. The ultimate goal was to better achieve the fair and equitable administration of justice, certainly the critical function of the courts.

But, despite the language of Rule 213 and Committee Comments directly addressing the notion of the interests of justice, often the courts appear to begrudgingly follow an overly strict construction of the Rule, even if the results may ring of inequity, much to the concern of some of the Discovery Rules Committee members and bar association leaders who originally supported the adoption of the rule.

Rule 213 has expanded the scope of Rule 220 and states: "An opinion witness is a person who will offer any opinion testimony." No longer is the "retained" versus "non-retained" status a distinction. The rule goes on to require that the subject matter, opinions, conclusions, qualifications and reports of any opinion witness must be provided.

Although neither the Rule nor the Committee Comments offers a definition of what constitutes an opinion - a debate unto itself - the Comments offer insight and some flexibility for the courts to make their determination about who should testify. Despite the strict time parameters for disclosure of opinion witnesses, the Committee nonetheless states that ". . . no new or additional opinions will be allowed unless the interests of justice require otherwise." [emphasis added].

It is clearly that the uppermost concern of the Discovery Rules Committee was the fair and equitable administration of justice, yet this critical note in the Comments has failed to receive as much of the courts’ attention and reliance as Committee members expected it would. Privately, some have confided their surprise and dismay in this often overlooked section and feel it often deserves more consideration.

Perhaps it is the limited explanation in the Committee Comments that forces courts to instead turn for guidance to the purposes underlying the new rule: to eliminate surprise and provide full and complete disclosure. But should that be at the expense of a trial court’s attempting to achieve fundamental fairness for a party otherwise properly presenting a case? "Strict" construction was never intended to mean "absolute" so as to eliminate trial court discretion under Rule 213.

A strict construction of Rule 213 actually is in direct conflict with the Rules Committee’s intent, as well as a long-standing principal of Illinois discovery practice embodied in Illinois Code of Civil Procedure Section 2-1003(c) (735 ILCS 5/2-1003(c)), which states:

"A party shall not be required to furnish the names or addresses of his or her witnesses, except that upon motion of any party disclosure of the identity of expert witnesses shall be made to all parties and the court in sufficient time to advance of trial so as to insure a fair and equitable preparation of the case by all parties."

Courts are obviously designed, ultimately, to see that fundamental fairness is done; but one can question whether that is being accomplished when some courts believe that they must see that Rule 213 is read as absolute, an apparent overreaction to the injustices and sandbagging that occurred under its predecessor, Rule 220.

In making a determination of whether to allow or bar opinion testimony at trial, the courts generally weight a number of factors: surprise to the adverse party, prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection of the testimony and the good faith of the party calling the witness. Some courts, however, while recognizing the need for strict construction, do, nevertheless, acknowledge a trial court’s proper use of discretion to engage in an equitable weighing process.

The oft-cited case of Department of Transportation v. Crull, 294 Ill.App.3d 531, 537, 690 N.E.2d 143 (4^th Dist. 1998), reveals the anti-"gamesmanship" attitude of courts on this controversial issue by noting that ". . . one of the reasons for new Rule 213 was the need to require stricter adherence to disclosure requirements." Id., 294 Ill.App.3d at 573, 539.

But, the real mischief can come from ignoring the Committee’s suggestion for the courts to consider the "interests of justice" in making a determination. Furthermore, what about the inherent conflict of Rule 213(g) with Illinois Supreme Court Rule 236, which states that medical records are independently admissible? Seasoned practitioners and trial courts know that nearly every page of a medical record contains one opinion or another. And what happens to the constitutional right of cross-examination when a pearl is uncovered during a brilliant adverse examination?

An interesting dynamic is taking place. In some parts of the state, particularly downstate and in rural areas, Rule 213 reportedly is working well because apparently judges can maintain a close watch on the scheduling of discovery and trial with a lesser caseload volume than is experienced in Chicago and the collar counties.

Moreover, litigants (who ultimately foot the bill) are in an uproar because Rule 213 preparation over-kill is driving case expenses through the roof. Perhaps the time has come for a statewide conference to examine just how the rule is operating and how it can work even better.

Certainly we have come a long way from the days of identifying witnesses and evidence on the eve of trial. Gone are the days of Perry Mason with the surprise witness coming out of the woodwork to turn around the case in the 11^th hour.

Today, opinions of any witness, lay or expert, should be timely disclosed, with the obligation on each party to reveal one’s witnesses, rather than on the opponent to discover them. This requirement is even more stringent with the affirmative duty to seasonably supplement new or additional information. Sometimes this is easier said than done, but trial courts should continue in their efforts to dispense fairness and justice in all proceedings.

Litigation already takes too long and costs too much. Contrary to the framers’ intent, Rule 213 makes is more costly and less manageable for those in the trenches.