Rule 213: Disclose, Disclose, Disclose

By now, every trial attorney in the state knows or should know that Illinois Supreme Court Rule 213 has been amended, effective July 1.

The rule attempts to change the way things have been done fo the last seven years in this state regarding opinion testimony. Although overall it appears to be an improvement in some areas, it also may open a Pandora’s box as to other critical issues of discovery.

The amended rule has set up a three-tiered classification of witnesses.

                + A lay witnesses is defined as " a person giving only fact or lay opinion testimony"
                + An independent expert witness is defined as " a person giving expert testimony who is not the party, the party’s current employee or the party’s retained expert." Treating physicians and police officers generally fall into this category.
                + A controlled expert witness is defined as " a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert."

Animmediate problem that arises is determining the right category for each witness. Chief Judge Timothy Evans of the Circuit Court of Cook County suggested at an Illinois State Bar Association program on Rule 213 that lawyers present a pre- trial motion asking the court to designate all witnesses so that the problem is avoided at trial.

The rule states that for an independent expert witness the party need only identify the "subjects" on which the witness will testify and the opinions that party experts to elicit. It defines " subjects" as "topics" and the Committee Comments accompanying the amendments suggest that the "topics" must be precise enough to give the opposing parties only reasonable notice regarding the nature of the testimony.

Although it appears that the intent may have been to simplify discovery, in reality, the amendments make no change in practice as to what disclosure is required for controlled expert witness. For these witnesses, the rule continues to require that the party identify the " subject matter" on which the witness will testify, the conclusions and opinions as well as the bases therefor.

Another significant change relates to the cross examination of witnesses. Many trial judges had ruled that the disclosure requirements of 213 applied to cross examination.

Under the old rule 213 it then often became a question of gamesmanship. Effective cross examination includes the element of surprise, but the cross examiner was prohibited from asking questions to elicit opinion, even slightly different opinions from his or her deposition.

It then became necessary for opponents to take unnecessarily lengthy depositions to make "disclosure," often even doing the job of the other party, by elicit opinion, even slightly different opinions from his or her deposition.

It then became necessary for opponent to take unnecessarily lengthy depositions to make "disclosure" often even doing the job of the other party, by eliciting every possible nuance or subtitle differentiation on the same theories so that the opinions would not be excluded at rial under the rule. This made the discovery process more expensive and made trials quibbling contests over legitimate cross examination.

The new rule has essentially addressed and eliminated this problem. Under section (g) the opposing party is given freedom to cross examine at trial without previous disclosure so long as the position of the cross examining party is not aligned with that of the party doing the direct examination.

But question will arise as to how one defines " aligned with." For example, in a medical malpractice case, are all defendants necessarily " aligned" on the issue of negligence? How this will play out in practice remains to be seen.

Another question that arises is the effect of the rule on pending cases. Although the rule does not specifically state it, the law usually is that a new procedural rule applies to all pending cases. This would suggest that under Section (I), attorneys should amend any previous disclosures made by seasonably supplementing disclosures.

Some practitioners and judges have state, however, that the Illinois Supreme Court may yet provide some guidance in creating a phase in of the rule whereby the rule would apply to all pending cases only where no Rule 213 disclosures have been made or where all parties agree that the new rule should apply.

One of the most significant changes is the addition of Sections (k), which states, " This rule is to be liberally construed to do substantial justice between or among the parties." The Committee Comments add that, " This rule is intended to be a shield to prevent unfair surprise but not a sword to prevent the admission of relevant evidence on the basis of technicalities."

It is clear that the courts are interested in avoiding hyper technical applications of the rule that have occurred in the past and having the case tried on its merits. The court has covertly attempted to distinguish and legitimate lawyering skills

The rule has some similarities to Rule 220, which the Illinois Supreme Court replaced with Rule 213 in 1995. Trial attorneys dealt with the inconsistencies and problems under the Rule 220 for 11 years.

Rather than making adjustments to Rule 220, Rule 213 represented an entire shirt of the disclosure burden to the proponent of the testimony, which created a number of new disputes that the courts found themselves grappling with in the last seven years.

The complaints around rule 220 were that its guidelines were too fuzzy. The problems under Rule 214 were that it was anticipated to create too much of a bright line test that often resulted in harsh, inequitable results.

Now, the amendments to Rule 213 attempt to find a middle ground. The committee Comments to the new rule implicitly recognize the downfalls of the past in stating that one of the purposes of the change " is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial."

The years of work in attempting to be fair and create a more open environment in trying cases in this critical area clearly is demonstrated in the adoption of the new rule.

The best advice to follow in practicing under the Rule 213 is to disclose as fully as possible. You can be barred if it has been disclosed. The biggest problems in the past seemed to arise when lawyers inadvertently or intentionally did not disclose sufficient information.

Overall, the new rule is a more common-sense approach and gives the trial court more latitude to do the right thing should technical problems arise. However, it remains to be seen whether the amendments to Rule 213 will provide yet another cottage industry of collateral motions, delays and nitpicking civil matters to death.

Certainly, some of that is to be expected initially as the bar and courts adjust to the amendments; but it is hoped that in time the courts will be able to apply it consistently so that a body of law emerges that can be practiced with predictability and fairness.