Articles Posted in Evidence

Illinois law permits a plaintiff to dismiss his or her case and refile it later. Typically, plaintiff, often because they are missing a witness or have some other fatal flaw in their case, dismisses the case without prejudice. The plaintiff then has a year to refile the case. This is especially useful if you are missing a witness who cannot be found, but the judge will not continue the case.

This came up in a medical malpractice case entitled Freeman vs. Crays. In Freeman the plaintiff had hired a primary care doctor to testify that the defendant in the case should have referred plaintiff’s decedent to a cardiologist. The plaintiff did not hire a cardiologist to testify about what might have happened after the plaintiff’s decedent got cardiologist. In other words, it was unclear whether a referral to a cardiologist would have likely saved plaintiff’s decedent. It was also unclear what the likelihood was.

Right before trial the defense asked for directed findings because the plaintiff could not prove causation. The trial court that without a cardiologist plaintiff could not win, so plaintiff dismissed and refiled.

In Illinois the Supreme Court adopted the “Illinois Rules of Evidence.”  They are found here. As a practitioner, it is nice to have what is supposed to be the law on evidence spelled out in a simple document.

I had the honor of attending the committee meetings and speaking about an objection to the way they were drafted on a certain technical issue.  At the committee the people who drafted the rules indicated that they were not meant to change Illinois law on evidence. In other words, the rules are supposed to describe existing evidence law, not create new law.

Since the Supreme Court adopted the rules I was concerned about the “Learned Treatise” doctrine. Now for those of you who do not know what I mean by the learned treatise doctrine, in federal court and in Illinois prior to the adoption of the Illinois Rules of Evidence, a lawyer was allowed to impeach a witness who testified inconsistently with an authoritative document described in the law as a learned treatise. The theory is that if a book on the subject is authoritative and the witness testifies inconsistently, either the witness does not know what they are talking about or the witness may not be completely honest.