Become Familiar with the Changes

A conductor misses a signal and the commuter train crashes into another, injuring dozens and killing many others. Family members file lawsuits in state court. Several defendants are named.

A listserv is created so that documents can be easily e-mailed to all the parties' attorneys. One of the plaintiff attorneys forgets to lock his handheld mobile e-mail device and, while the device is in his pants pocket, he accidently sends a critical document to all parties, a document that was meant to be seen only by the plaintiffs' experts.

Immediately upon realizing the mistake, he sends an e-mail to all of the recipients, telling them to disregard the previous missive. They are asked to destroy, delete and eliminate the message, but for some it was too late.

In the minutes that had passed, several of the defense attorneys read the document.

Although they deleted the document upon instruction, one of the attorneys can't forget the important information and uses it as he prepares his own experts to defend the claim. As discovery proceeds, it becomes clear that the defense knows more than they have been given.

How does one address this hypothetical in court?

Or what about a case where an attorney attempts to discredit a witness who she knows is telling the truth? Or she confers with her witness during a break?

Or what about the attorney who calls a witness to the stand primarily to prejudice the opposing party, with little regard for whether the testimony is actually necessary to support her case or if it prejudices the opposing party?

Ex-parte communications between parties and the judicial officer also can become an issue in cases as they are prepared for trial.

The answers to these hypotheticals lie, not only in the Professional Rules of Conduct, but in the newly codified Illinois Rules of Evidence.

Trial judges are given considerable discretion in answering evidentiary questions compounded by ethical dilemmas and, in an effort to help lawyers to practice within the letter as well as the spirit of these rules, the Illinois Supreme Court codified the Illinois Rules of Evidence, effective Jan. 1 of this year.

Upon the initiative of then-Chief Justice Thomas R. Fitzgerald, a 19-member Supreme Court Committee on Illinois Evidence was formed, which included Shannon McNulty, an attorney at my firm.

For two years they discussed, debated and sought public comment on a 69-page draft of the code before the Illinois Supreme Court approved it in September.

The commentary, written by Illinois Appellate Justice Donald C. Hudson, chairman of the committee, states that the code now has "all of the basic rules of evidence in one easily accessible, authoritative source [that] 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 new rules are meant "to improve the trial process itself as well as the quality of justice in Illinois."

The Supreme Court, upon the committee's recommendation, incorporated the current state of the law of evidence and modernized it through "noncontroversial developments in the law of evidence as reflected in the Federal Rules of Evidence and 44 jurisdictions."

For example, one important codification of the new Illinois Rules of Evidence concerns a prior inconsistent statement that does not need to be shown to a witness prior to cross-examination under Ill.R.Evid. 613(a), despite Illinois Central Railroad v. Wade , 206 Ill. 523, 69 N.E. 565 (1903), which holds to the contrary.

Rule 608 now permits opinion testimony for its truthfulness with respect to a person's character. It is also important to note that the Rules officially codify Frye as the standard for admitting expert testimony, unlike the Federal Rules of Evidence Rule 702, which operates under the Daubert standard.

To help attorneys learn how the Illinois Rules of Evidence interplay with the Rules of Professional Conduct, my law firm, an accredited provider of continuing legal education, is holding a free webinar for all Illinois lawyers on Thursday, Feb. 17.

Two hours of free professional responsibility credit has been approved. Among the panelists is Justice Hudson. You can learn more about it at my firm's website, cliffordlaw.com.

For example, they will be discussing the Rules of Evidence in conjunction with Rule 4.4 of the Rules of Professional Conduct, which requires a lawyer who receives information that was inadvertently produced to notify the producing party.

Rule 3.3 of the Rules of Professional Conduct deals with the offering of false evidence. And Rule 4.1 is triggered when the case is discussed with others.

At the very least, it is imperative that every lawyer in Illinois become familiar with the newly codified Rules of Evidence so that the ethical and correct tactical decisions can be made in a more predictable litigation setting when the relationships of attorneys to the court, opposing parties, witnesses and jurors are at stake.