ISBA Seminar
205 West Wacker Drive, Chicago, IL
Auditorium
Monday, May 10, 2004

1. The Rule (effective July 1, 2002)

   Rule 213 (f): Identity and Testimony of Witnesses: Upon written interrogatory a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information: (1): Lay Witnesses: A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

   (2) Independent Expert Witnesses: An "independent expert witness" is a person giving expert testimony who is not a party, the party's current employee, or the party's retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

   (g): Limitation on Testimony and Freedom to Cross-Examine. The information disclosed in answer to a Rule 213 (f) interrogatory, or at deposition, limits the testimony that can be given by a witness on direct examination. Information expressed in a deposition need not be later specifically identified in a Rule 213 (f) answer, but upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213 (f) answer or in the deposition. Without making disclosures under this rule, however, a cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.

   (h): Use of Answers to Interrogatories. Answers to interrogatories may be used in evidence to the same extent as a discovery deposition.

   (i): Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.

   (k): Liberal Construction. This rule is to be liberally construed to do substantial justice between or among the parties.

2. The Committee Comments:

   The purpose of this paragraph is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial. The paragraph divides witnesses into three categories, with separate disclosure requirements for each category.

   "Lay witnesses" include persons such as eyewitnesses to a car accident. For witnesses in this category, the party must identify the "subjects" of testimony - meaning the topics, rather than a summary. An answer must describe the subjects sufficiently to give "reasonable notice" of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. In the above example, a proper answer might state that the witness will testify about: "(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident." The answer would not be proper if it said only that the witness will testify about: "the accident." Requiring disclosure of only the subjects of lay witness testimony represents a change in the former rule, which required detailed disclosures regarding the subject matter, conclusions, opinions, bases and qualifications of any witness giving any opinion testimony, including lay opinion testimony. Experience has shown that applying this detailed-disclosure requirement to lay witnesses creates a serious burden without corresponding benefit to the opposing party.

   "Independent expert witnesses" include persons such as a police officer who gives expert testimony based on the officer's investigation of a car accident, or a doctor who gives expert testimony based on the doctor's treatment of the plaintiff's injuries. For witnesses in this category, the party must identify the "subjects" (meaning topics) on which the witness will testify and the "opinions" the party expects to elicit. The limitations on the party's knowledge of the facts known by and opinions held by the witness often will be important in applying the "reasonable notice" standard. For example, a treating doctor might refuse to speak with the plaintiff's attorney, and the doctor cannot be contacted by the defendant's attorney, so the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor's opinions. In these circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor's compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer's initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness' apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of opinions the party expects to elicit. Requiring disclosure of only the "subjects" of testimony and the "opinions" the party expects to elicit represents a change in the former rule, which required detailed disclosures about the subject matter, conclusions, opinions, bases, and qualifications of all witnesses giving opinion testimony, including expert witnesses over whom the party has no control. Experience has shown that the detailed-disclosure requirement is too demanding for independent expert witnesses.

3. Practice Considerations
   1. Standard = reasonable notice (no unfair surprises)
      
      
   2. Err on side of overdisclosure (give yourself breathing room)
      
      
   3. Be able to show the trial judge when and where disclosed
      
      
   4. Supplement and amend
      
      
   5. Consider answering 213 (f) (1) and (2) interrogatories an exercise in case evaluation and trial preparation

4. Application

   Sample Disclosures attached