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This Chapter Was First Published by IICLE® This chapter was first published by ® IICLE . Book containing this chapter and any forms referenced herein is available for purchase at www.iicle.com or by calling 800-252-8062. Proof of Facts in Civil Cases 12 RICHARD L. MILLER II Novack and Macey LLP Chicago The contribution of Fred Lane, Scott D. Lane, and Stephen I. Lane to prior editions of this chapter is gratefully acknowledged. ® ©COPYRIGHT 2012 BY IICLE . 12 — 1 ILLINOIS CIVIL PRACTICE: PREPARING FOR TRIAL I. Introduction A. [12.1] Scope of Chapter B. [12.2] Definition of Evidence C. [12.3] Types of Evidence D. [12.4] Sources of Evidentiary Rules E. Materiality, Relevancy, and Competency 1. [12.5] In General 2. [12.6] Materiality 3. [12.7] Relevancy 4. [12.8] Competency 5. [12.9] Federal Rules of Evidence 6. [12.10] Evidence Admitted for Limited Purpose II. Burden of Proof A. [12.11] Definition B. Determining Who Has the Burden of Proof 1. [12.12] In General 2. [12.13] Comparative Negligence 3. Examples a. [12.14] Absence of Consideration b. [12.15] Agency c. [12.16] Execution of an Instrument d. [12.17] Intoxication e. [12.18] Payment for Goods Received f. [12.19] Cost of Medical Care g. [12.20] Undue Influence on a Testator h. [12.21] Privilege i. [12.22] Competency To Testify j. [12.23] Res Ipsa Loquitur C. Meeting the Burden of Proof 1. [12.24] Stipulations 2. [12.25] Admissions 3. [12.26] Evidence Produced by the Opponent 4. [12.27] Violation of Statute, Ordinance, or Regulation as Basis for Negligence D. [12.28] Quantity of Proof Necessary E. [12.29] Burden of Proceeding or Going Forward with Evidence 12 — 2 WWW.IICLE.COM PROOF OF FACTS IN CIVIL CASES III. Judicial Notice A. [12.30] In General B. [12.31] Categories 1. [12.32] Matters of Common Knowledge 2. [12.33] Matters Capable of Verification 3. [12.34] Legal Materials C. [12.35] Effect and Presentation of Matters for Judicial Notice IV. Presumptions and Inferences A. [12.36] In General B. [12.37] Inferences C. [12.38] Presumptions 1. Examples of Presumptions a. [12.39] Fraud or Undue Influence b. [12.40] Negligence of Bailee c. [12.41] Physical or Mental Condition d. [12.42] Absence of Person e. [12.43] Ownership of Vehicle f. [12.44] Loss of Society g. [12.45] Safety of Products h. [12.46] Superior Rights Doctrine i. [12.47] Loss or Destruction of Will 2. [12.48] Varying Approaches to Rebutting the Presumption 3. [12.49] Presumptions in Illinois D. [12.50] Failure To Produce Evidence or a Witness E. [12.51] Circumstantial Evidence V. Demonstrative Evidence A. [12.52] Definition B. [12.53] Importance of Demonstrative Evidence C. [12.54] Admission and Exclusion of Demonstrative Evidence D. Examples of Admissible Demonstrative Evidence 1. [12.55] Original Evidence (Real) 2. [12.56] Objects and Models Prepared for Trial (Demonstrative Evidence in Narrow Sense) ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 — 3 ILLINOIS CIVIL PRACTICE: PREPARING FOR TRIAL E. Examples of Inadmissible Demonstrative Evidence 1. [12.57] Misleading Evidence 2. [12.58] Cumulative Evidence 3. [12.59] Instrumentality of Injury 4. [12.60] Comparison of Handwritings or Signatures VI. Opinions and Conclusions A. [12.61] Opinion Overview B. Lay Opinions and Conclusions 1. [12.62] Foundation of Opinion 2. Examples of Admissible Lay Opinions a. [12.63] Speed b. [12.64] Mental Condition c. [12.65] Intoxication d. [12.66] Summaries of Observation e. [12.67] Ultimate Issue f. [12.68] State of Health C. Expert Opinions and Conclusions 1. [12.69] Expert Qualifications 2. [12.70] Disclosure of Opinion Evidence 3. [12.71] Admissibility of Expert Opinion Evidence 4. Examples of Admissible Expert Opinions a. [12.72] Causation b. [12.73] Point of Impact c. Accident Reconstruction (1) [12.74] Speed of vehicle (2) [12.75] Reconstruction testimony d. [12.76] Financial Experts e. [12.77] Future Risk of Harm and Lost Chance Doctrine f. [12.78] Ultimate Issue g. [12.79] Psychologist’s Opinion as to Future Dangerousness 5. Examples of Inadmissible Expert Opinions a. [12.80] Hedonic Damages b. [12.81] Police Officers’ Opinions as to Accidents c. [12.82] Expert’s Opinion as to What He or She Would Have Done d. [12.83] Expert’s Opinion as to Meaning of Statute 6. [12.84] Example of When Expert Opinion Is Not Necessary 7. [12.85] Expert Opinion Based on a Hypothetical Question 8. [12.86] Expert Opinion Based on Inadmissible Evidence 9. [12.87] Acceptance of Scientific Evidence: Frye vs. Daubert Standards 12 — 4 WWW.IICLE.COM PROOF OF FACTS IN CIVIL CASES §12.3 I. INTRODUCTION A. [12.1] Scope of Chapter This chapter gives a trial lawyer a basic understanding of proof issues that commonly arise in civil cases. It addresses the nexus between evidence and proof; that is, the manner in which a party to litigation provides an adequate amount of evidence to prevail on a contested matter. For a greater understanding of any of these issues, counsel should delve further into caselaw and secondary sources. B. [12.2] Definition of Evidence “Evidence” has been defined as “[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.” BLACK’S LAW DICTIONARY, p. 635 (9th ed. 2009). Similarly, it has been described as “any matter of fact which is furnished to a legal tribunal [other than by reasoning or a reference to what is noticed without proof] as the basis of inference in ascertaining some other matter of fact.” James B. Thayer, Presumptions and the Law of Evidence, 3 Harv.L.Rev. 141, 142 (1889). Evidence includes all of the means by which any alleged matter of fact is established or disproved. County Treasurer v. First National Bank of Lake Forest, 87 Ill.App.2d 133, 230 N.E.2d 571 (2d Dist. 1967). C. [12.3] Types of Evidence There are two types of evidence: direct and circumstantial. Direct evidence is evidence offered to prove a proposition based on the truth of the specific fact offered. Examples of direct evidence include the testimony of a witness that he or she saw the decedent sign the will or that he or she heard the defendant’s car tires squeal prior to the accident. Circumstantial evidence, on the other hand, is offered to prove a proposition based on an inference arising from the truth of the specific fact offered. An example of circumstantial evidence is testimony that a piece of fabric identical to that of an automobile accident victim’s jacket was found on the grill of the defendant’s car. This testimony raises the inference that the defendant’s car collided with the automobile accident victim. See also §§12.51 – 12.60 below (discussing circumstantial and demonstrative evidence). These two types of evidence can be further distinguished as being oral, real, or demonstrative. As its name implies, oral evidence is evidence given by word of mouth. Demonstrative evidence is supplied by writings, documents, or objects. Some authors and courts refer to both real evidence and demonstrative evidence as “demonstrative evidence.” As explained below, however, the terms have different meanings. Real evidence involves the production of some physical, tangible object that had a direct part in the incident. For instance, the allegedly defective seat belt in a product liability action constitutes real evidence. When the jury is viewing such a tangible thing, it is viewing real ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 12 — 5 §12.4 ILLINOIS CIVIL PRACTICE: PREPARING FOR TRIAL evidence. The trier of fact may, by the direct use of its senses, determine facts about these objects. The admission of real evidence is determined by weighing its probative value against its potential for unfair prejudice. Demonstrative evidence is any physical, tangible object that is created for use at trial. Examples of demonstrative evidence include models, photographs, diagrams, drawings, charts, and other aids. However, the key to the use of demonstrative evidence is a showing that its use will help the trier of fact to better understand the testimony. Bachman v. General Motors Corp., 332 Ill.App.3d 760, 776 N.E.2d 262, 267 Ill.Dec.125 (4th Dist.2002). See also Michael H. Graham, CLEARY AND GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE §401.2 (10th ed. 2010) (CLEARY AND GRAHAM’S). D. [12.4] Sources of Evidentiary Rules The law of the forum generally determines the admissibility of evidence since rules of evidence are considered procedural in nature. However, on occasion, standards of admissibility that manifest a strong public policy may be regarded as substantive. See Jack B. Weinstein, The Uniformity-Conformity Dilemma Facing Draftsmen of Federal Rules of Evidence, 69 Colum.L.Rev. 353 (1969). Rules of evidence may be found in various places. For example, Illinois’ Dead-Man’s Act, 735 ILCS 5/8-201, governs the admissibility of statements made by a decedent in the trial of any action in which any party sues or defends as the representative of a deceased person. But the Illinois Supreme Court Rules also address the admission of evidence including, for instance, business records. S.Ct. Rule 236. Finally, rules of evidence can be found in judicial decisions from Illinois appellate and supreme courts. The rules of evidence are generally applicable in all civil actions, legal or equitable, and in many contested administrative proceedings. In certain proceedings, such as arbitration, the rules of evidence are often relaxed. For example, S.Ct. Rule 90(c) provides that certain documents are presumptively admissible at mandatory arbitration hearings without foundation or other proof.
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