Chicago Accident and Injury Lawyer Blog

Every month, Chicago personal injury lawyer Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In this month's Halloween-themed article, "Halloween illustrates element of surprise at trial", Jeff discussed embracing the element of surprise at trial, instead of fearing it. Here is an excerpt from his article:

"When it comes to jury trials, most attorneys strive to eliminate the possibility of surprise. Anyone that has ever presented testimony in court has most likely encountered a witness who provided a different version of the incident on the stand than they had during preparation. You know what, even with proper preparation, sometimes "stuff" happens.

"But, what if trial attorneys learned to embrace the element of surprise at trial, instead of fearing it? Personally, I do not like to give away all the strengths of my case during pretrial discovery. Often, I forgo the long, extended deposition of a particular witness if I believe that I am going to try the case. Sometimes, if I know that I am going to conduct cross-examination of a particular witness at trial, I want another attorney in the office to take the discovery deposition. See, a trial surprise doesn't have to be eerie, so long as you are the one introducing it, not your opponent.

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"Now, I understand that the purpose of Illinois Supreme Court Rule 213 is "to avoid surprise and to discourage tactical gamesmanship." Sullivan v. Edward Hospital, 209 Ill. 2d 100, 111 (2004). I am in no way advising that trial attorneys ignore the all-mighty (and potentially frightening) Rule 213. Disclose everything — every opinion and their bases, every document, every potential piece of evidence — and on time.

"Yet, cross-examination is a different ghost. Rule 213(g) states: "Without making disclosure under this rule … a cross-examining party can elicit information, including opinions, from the witness." Ill. Sup. Ct., R 213 (2011). The committee notes further explain, in part: "Parties are to be allowed a full and complete cross-examination of any witness and may elicit additional undisclosed opinions in the course of cross-examination." Id., Committee Comment to March 28, 2002, Amendment, Paragraph (g). See also, Stapleton v. Moore, 403 Ill. App. 3d 147, 156-157 (1st Dist. 2010) ("holding that Rule 213(g) does not require a party to disclose journal articles that the party intends to use while cross-examining the opposing party's opinion witness"). This, my friends, is why I love cross-examination.

"In fact, cross-examination can be the place to really shock your opponent. Take a recent 1st District Appellate Court case, Van Gelderen v. Hokin, 2011 Ill. App. LEXIS 785 (1st Dist. 2011). There, the plaintiff was injured when he fell down a stairwell upon exiting the side entrance to the defendant's home. At trial, the defendant testified that he had not changed anything about the side entrance and that no one since the plaintiff had been injured by falling down the stairwell. 2011 Ill. App. LEXIS 785, *22. The plaintiff, in turn, properly impeached the defendant by introducing evidence of a baby gate that had been installed after the incident. By testifying that no one had been injured and no changes had been made, the defendant opened the door to allow evidence of the installation of the baby gate, permitting otherwise inadmissible evidence of a subsequent remedial measure to be introduced at trial. Id., see also, Herzog v. Lexington Township, 167 Ill. 2d 288, 302 (1995) (evidence of subsequent remedial measures may be admissible for the purpose of impeachment). I do not know whether or not the plaintiff's attorney expected the defendant's response that "no changes had been made," but the fact that the attorney had the evidence of the subsequent remedial measure available at trial is commendable."

To read Jeff's entire article, click here.