Illinois Evidence With Objections
By Honorable John W. Darrah
In the past few years, law professors teaching evidence and trial practice have received an increasing number of solicitations for books and teaching materials in these areas of the law. These new publications are generally of two kinds: either hornbook-type treaties or materials which focus on the practical aspects of litigation.
Illinois Evidence With Objections by Carey,Bocchino, and Sonenshein is unique in this regard in that it provides both a practical method for the use of a rule of evidence during litigation practice and a citation to Illinois authority in support of the rule with a brief discussion of the rationale behind the rule. All of this is contained in a 4" x 6" paperback edition priced at $21.95.
The authors are James P. Carey, a Professor at Law at Loyola University of Chicago who has an extensive trial background; Anthony J. Bocchino and David A. Sonenshein, law professors on the faculty of Temple University School of Law, who also have solid litigation experience. The book is published by the National Institute for Trial Advocacy, which provides trial advocacy training conducted by practitioners in a real-life setting.
Illinois Evidence With Objections is arranged by use of the word or phrase customarily invoked in a courtroom to raise and argue objections. Each rule of evidence is first stated in the manner of an objection.
E.g. "Objection
I object. This evidence is irrelevant in that it is such an isolated occurrence as to be insufficient to constitute a habit or routine practice.
Response
This evidence is relevant because it shows:
• a consistent habit or routine practice
• which raises a permissible inference that the party likely acted according to the habit or routine practice."
Following the objection and response is a cross-reference to Illinois law. In the above-cited example, several cases are cited and Clearly and Graham, Handbook of Illinois Evidence, is mentioned as to a specific section. After that is an explanation of the reason behind the rule and a comparison of the Illinois rule and Federal Rule of Evidence 406, which rules are found to be essentially the same.
The Illinois authority which is cited in support of the particular rules of evidence consists of Illinois case law, stautes, Supreme Court Rules, and, as noted above, applicable sections of an authoritative treatise on Illinois law of evidence, Handbook of Illinois Evidence by Edward W. Cleary and Michael H. Graham. The various Illinois statutes and Supreme Court Rules which are cited as authority are reprinted in the back of the book in their entirety.
Illinois Evidence With Objections provides some advantages by virtue of its virtue of its format and contents, particularly to the inexperienced or intermediate practitioner. The alphabetical arrangement of the book in the terms used in making objections permits a quick reference to assist in interposing and responding to objections and framing testimony during a trial or hearing. It also provides immediate access to Illinois authorities regarding the applicable rule of evidence, including the text of the statute or Supreme Court rule, where cited. The many references to Cleary and Graham, Handbook of Illinois Evidence would permit an even further in-depth analysis and argument of the evidentiary rule at issue if that book was also kept close at hand at counsel table.
One of the most interesting features of Illinois Evidence With Objections is the treatment of the Federal Rules of Evidence, particularly where those rules are different from Illinois law (the reader unfamiliar with the Federal Rules might be surprised to find how infrequently this occurs). For example, in discussing the text in determining expert qualifications, the book notes that Illinois follows the U.S. Supreme Court holding in the case Frye V. United States, even though that case has been significantly modified by the recent U.S. Supreme Court opinion in Daubert V. Merrill Dow Pharmaceuticals. The book, therefore, serves as a quick, practical reminder to a litigator who practices in both courts of the differences between Illinois and Federal Rules of Evidence.
Moreover, the parallel citation of Illinois and Federal Rules could provide the litigate in an Illinois court with the basis for the development of a well-reasoned argument to extend Illinois law to permit the admissibility of evidence otherwise barred by invoking the rationale and purpose of the counterpart Federal Rules of Evidence. The Illinois Supreme Court, in the holding of Wilson V. Clark, adopted Federal Rules of Evidence 703 and 705 regarding the admissibility of expert opinion and the evidentiary basis therefor. until that time, the data relied upon by experts in rendering an opinion, contrary to the Federal Rules, generally had to be admissible in evidence. Wendell Clancy, a friend and well-known trial lawyer to many of us, argued successfully that the rationale behind the Federal Rules warranted the introduction of an expert opinion based on material then otherwise insufficient under Illinois law. Consideration of the book’s comparison of Illinois and Federal Rules might stimulate a similarly successful argument for the adoption of the latter in modification of existing Illinois law.
Illinois Evidence With Objections has unique advantages for use by the trial practitioner both during and before trial. As the authors note in the preface, it is "not designed to provide an in-depth analysis of evidentiary rulings or the application of the theories concerning the admission or exclusion of evidence." Recognizing these limitations, this evidence book has something to offer Illinois litigators at all levels of skill and experience and is worth the time and money spent in reading and using it.
Honorable John W. Darrah is a Presiding Judge in the Chancery Division. He is an Adjunct Professor of Law at Northern Illinois University where he teaches courses in evidence and trial advocacy. He is a member of the faculty and teaches courses for NITA.