The Illinois Dead Man s Act

Transcription

1 The Illinois Dead Man s Act S eminar Topic: This program examines what exactly the Dead Man s Act is, when and whom it applies to, exceptions to the Act, and cases involving the Dead Man s Act This program will provide the participant with the knowledge and tools necessary to identify the current legal trends with respect to the Illinois Dead Man s Act. This material is intended to be a guide in general. As always, if you have any specific question regarding the state of the law in any particular jurisdiction, we recommend that you seek legal guidance relating to your particular fact situation. The course materials will provide the attendee with the knowledge and tools necessary to identify the current legal trends with respect to these issues. The course materials are designed to provide the attendee with current law, impending issues and future trends that can be applied in practical situations. Page 1

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3 Copyright 2013 Printed in the United States of America. All rights reserved. No part of this monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher. Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation. The Apex Jurist, is Published by ApexCLE, Inc. Ordering Information: Copies of this monograph may be ordered direct from the publisher for $24.95 plus $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher. Library of Congress Cataloging-in-Publication Data ApexCLE, Inc. 119 South Emerson St., Suite 248 Mount Prospect, Illinois ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education. Page 3

4 About The Author Mr. Forman graduated from University of Illinois with a Bachelor of Arts degree in Psychology in He obtained his doctor of law degree from DePaul University College of Law in Mr. Forman is an experienced mediator, having completed the Center for Conflict Resolution s 40-hour Performance Base Mediation Skills Training and having qualified under Amended Rule 20 of the Circuit Court of Cook County as a qualified mediator Mr. Forman s more than forty eight years of litigation experience ensure that each client receives the finest legal services. Mr. Forman has an expertise in Medical Malpractice, Personal Injury, Probate matters, Breach of Contract, Nursing Home Liability, Workers compensation, Bankruptcy, and General Litigation. Mr. Forman has accumulated numerous Honors and Awards in his professional career: American Arbitration Association Arbitrator, Circuit Court of Cook County and DuPage County Mandatory Arbitrator, State of Illinois Tenured Teacher Dismissal Hearing Officer, State of Illinois Appellate Hearing Officer in Special Education, Qualified under Rule 20 Circuit Court of Cook County by Certification at Centers for Conflict Resolution. With law offices in Chicago, Oakbrook and Northbrook, it is easy to arrange a personal meeting to discuss your case. You may also make use of our twenty-four hour answering service at (630) to ensure that you will always be able to reach Mr. Forman. Author s Address: Author s Website: Author s Mailing Address: Author s Phone Number: Fax Number: lee4man@sbcglobal.net West 22 nd Street, Suite 603 Oak Brook, IL Page 4

5 Introduction Just what is the Dead Man s Act? According to most hornbook definitions, the Act is an evidentiary rule barring testimony by someone with an interest in litigation about any conversation or event occurring in the presence of a decedent in a cause of action. The Dead Man s Act (735 ILCS 5/8-201) The Dead Man s Act was first enacted, as an extension of English Common Law, has been on the books in Illinois since The rationale for the rule is that since a decedent s lips are sealed by death, a survivor s lips are sealed by law. There are exceptions to the rule which we will discuss in a few moments. It can be said without discussion that there have been witnesses, who from time to time may be tempted to falsify evidence to their own advantage where the evidence cannot be refuted. The English Common Law Rule leveled the playing field for the estates of the individuals who were involved in litigation and thence died and were not able to present testimony in opposition to the testimony of their living opponent. The Dead Man s Act placed the parties on equal footing in the cases involving deceased or disabled individuals who could not testify and disallows the interested live party from testifying as to any conversation and or event which occurred in the presence of the decedent. While over half the states in the USA have abolished the antiquated Dead Man s Act, it is still alive and well in many states including Illinois. In Illinois, although there was a movement several years ago to abolish, abrogate or amend the act, the legislature never responded to the call and the Act is alive and well in Illinois. Litigators who practice in not only Probate but all areas of trial work should make themselves intimately familiar with all of the case law concerning the Act. Page 5

6 Many a defense counsel has used the Act to defeat an otherwise losing case with a form over substance type of argument relying upon the Dead Man s Act. It is therefore, important for litigators to really understand the Act and how it should be applied with the law in its present state and to vigorously attempt to alter it to apply to modern day circumstances. When and to Whom does the Act Apply? In plain simple English, the Act disallows all testimony concerning conversations or events from any interested party which took place in the presence of a deceased or disabled person. The operative words are CONVERSATIONS, EVENTS, INTERESTED PERSON, DECEASED OR DISABLED. What it means is that certain testimony may be declared or rendered incompetent by the trial court if it concerns a conversation or event that a live or competent adverse witness might refute but for the fact that he or she is dead or incompetent. Now many a litigant may take the act literally without a concern for exception but because the Act has oft times caused harsh and unfair results barring legitimate claims to ensure that fraudulent claims are unsuccessful. As such, case law has provided us with exceptions that are generally recognized such as: a) When the deceased or disabled party opens the door by introducing testimony or a deposition transcript concerning conversations or events in the presence of the deceased. This gives the opponent a right to refer to the conversation of the deceased or incompetent. Let me give you an example of a circumstance where this exception might be applicable. A rear end automobile collision takes place and the defendant appears for an evidence deposition and the deposition is used on trial where the defendant blames the Plaintiff for hitting her brakes fast and coming to a sudden unexpected stop in the middle of a block. The Plaintiff can then testify that the accident happened at an Page 6

7 intersection and the light had turned red which the Defendant should have seen. Once the Defendant attempts to place into evidence conversations or events that took place while he was alive to his advantage now that he is dead, the Plaintiff may now even the playing field by using an exception to the Act. Now, the right to object to testimony as improper belongs solely to the representative of the deceased or disabled person. A citation for that is In re Estate of Sewart 274 Illl App 3 rd 586. Please be careful in using this exception. The protected party does not open the door by introducing evidence to protect the estate or its assets but the exception comes into play when the deceased by and through counsel presents a one sided story of the examining an adverse witness uses questions which come up with conversations or events with or in the presence of the decedent or incompetent, then an exception to the Act is applicable. Let me give you another example. At the same rear end accident a driver of a third car is a witness for the defense. He testifies that he overheard a conversation between Plaintiff and decedent and decedent accused the Plaintiff of coming to a sudden stop. The next witness is the Plaintiff and Defendant s counsel for the deceased asks Plaintiff, didn t defendant accuse him at the scene of the accident of coming to a sudden stop? In both instances the Plaintiff may testify that the defendant never said that and in fact he apologized for not seeing Plaintiff stop and said the accident was his fault. It would be unjust to allow an estate to insinuate a set of circumstances that imply a defense and not allow the other party to testify by the application of the Act. However, please note that if the cross examination of such a witness goes BEYOND the scope of the direct examination to elicit such an exception, the motion to bar such testimony will be allowed by the court. Page 7

8 b) A second exception to the Act is there the proffered testimony pertains to the foundation of a document. As an example the Plaintiff sues the Defendant under a written contract. The Plaintiff attempts to lay a foundation for the entrance of the contract by stating that he and the deceased met at his home on a Sunday afternoon alone and produced and signed the writing. The contract will be received into evidence despite an objection that the conversation and event of the place and signing of the contract is contrary to the Act. The court will allow this as an exception. The Act actually reads as follows: Any party or interested person may testify to his or her account book or any other record or document and the items therein contained: that the same is a book record, or document of original entries, and that the entries therein were made by himself or herself, and are true and just: or that the same were made by a deceased person, or by a disinterested person, a non-resident person of the state at the time of the trial and where may by such deceased or nonresident person in the usual course of trade, and of his or her duty or employment o the party so testifying: and thereupon the account book and entries or any other record or documents hall be admitted as evidence in the cause. In simple English: where the claim is founded upon a document such as a contract. c) A third exception is where there is testimony to be introduced relating to the heirship of a decedent. As far back as 1966 this exception was legislated as 5/8-201 (d) and really is very rarely objected to. Where an estate is attempting to establish the heirship of a decedent, any and all testimony from interested persons will be allowed by the Court in order to establish who is to receive or share in the proceeds of the estate and to what extent. The reason is simple: The Court wants to establish a method by which there is a proper administration of an estate and to disallow interested persons from testifying would cause a great hardship in most cases. Page 8

9 What we Have Learned Thus Far Q: Whose testimony is barred by the Illinois Dead Mans Act? A: Only that of a witness directly interested in the outcome of the case. Q: What testimony is barred by the Illinois Dead Man s Act? A: Only that concerning a conversation or event involving the deceased or disabled. Q: When does the Act apply? A: At either the summary judgment or trial stage of litigation providing the protected party does not open the door to the testimony or it does not pertain to the foundation of a document or at an heirship hearing. What is an Event? We have mentioned the key words; CONVERSATION and EVENT. It should not take the level of a Supreme Court Justice or rocket scientist to define what a conversation is but there is a question always raised as to what an EVENT is that is the basis for raising the Act. The rule is simple so do not allow your opponent to pull the wool over your head. An EVENT is commonly defined as a happening or occurrence. It could be defined as to any occurrence which took place in the presence of the decedent or disabled which could be described in many different ways. But what about a non-event or the non-happening of an occurrence or when does an event start and when does it end? The meaning of the word EVENT has been vigorously litigated for years and unquestionably will continue to be contested forever. However, in order for you to get some type of handle on the law as it exists today, I will simply try to explain to you that if the occurrence or event is something that happened in the presence of the deceased or disabled Page 9

10 and if the deceased or disabled could not possibly have an opinion about it or a reasonable explanation of the event then he could not be able to testify to it if he were alive and competent. Case Example Rerack v Lalley 241 Ill App3d 692. (1 st District 1992) A great case which now is the true fourth exception to the Act is the case of Rerack v Lalley 241 Ill App3d 692. (1 st district 1992). I have used this case more times than my CTA pass. In Rerack, a vehicle driven by the defendant-decedent rear-ended the plaintiff s car which had already come to a complete stop. The defendant s counsel, with a smile on his face and the Act waiving in his hand declared victory and demanded a directed verdict citing such cases as Vazirzadeh v Kaminski 157 Ill App 3d 638 (1 st district 1987). I can hear him now in my mind saying your honor, there is no way the Plaintiff can prove his case as there are no independent witnesses and he cannot testify as to what occurred before or during the accident to describe how my client was negligent. The reason such counsel may be smiling was that the courts, back then, would find in his favor and a clear cut rear-ender would fall to form over substance law. However, along came the Court in Rerack: While it still is the law that the Plaintiff could not testify as to the details of the collision, our appellate court found that the plaintiff could testify to; the over all mechanical condition of his car before the accident the weather and lighting conditions at the time of the collision that his vehicle was stopped for two minutes before the collision that his foot was on the brake continuously, that he heard no sound prior to the accident s impact that after the collision he observed damage to the rear of his car which was not there before the collision that the posted speed on the highway was 35 mph that he had his lights on prior to the collision Case Example Page 10

11 Clifford v. Schaefer, 105 Ill App2d323, 245 NE2d 49 (1 st District) In 1969 a police officer that took statements at the scene and saw the subject autos positions could support a claim in a rear end auto collision. It is therefore clear that a reporting police officer can testify as to conversations with the decedent, the position of the autos, his expert opinion and his accident reconstruction scenario. The only caveat that make no sense, is that if a Plaintiff attempts to make a motion for summary judgment that there is case law which prevents an expert as opposed to an eye witness from expressing his opinion as to fault. In a case I recently tried, the court would not give me summary judgment because he considered the police officer an expert witness rather than an eye witness. But that is the subject for another lecture. When you review all of the preceding types of testimony you can clearly see that even if the decedent had survived and was competent he could not dispute the mechanical condition of Plaintiff s vehicle or lack of damage to the rear end before the occurrence or what Plaintiff did in his vehicle prior to the crash. The courts are continuously adding to the Rerack exceptions to the Act however in Gunn v Sobucki 216 Ill2d 602 the court distinguished between an occurrence or event and a nonoccurrence or non-event. Where a decedent was unable to testify as to a non-payment the adverse party was likewise unable to testify as to a non-event or the non-happening of an event. As such, under the Dead Man s Act there is a distinct difference between the testimony that an event occurred and the negative testimony of the fact that an event did not occur. These cases are the tip of the iceberg and counsel would be wise to research all new case law to update this lecture. Prignano v. Prignano Now, I myself, had an opportunity to more clearly define the case law on the Dead Man s Act. I tried a case called Prignano v Prignano in the Circuit Court of DuPage County which is cited as 343 Ill Dec 89 (2010). Mr. Prignano had married twice and had a terrible first divorce. He married again and since he had no intention of staying within the bounds of fidelity, he put all of his worldly assets in the name of his brother who Page 11

12 was also his business partner. Mr. Prignano died in the arms of his lover leaving a wife and four daughters. Before his death he had entered into an oral contract with his brother Louie and purchased several hundreds of thousands of dollars of insurance with Louie as beneficiary with the intention that if he died his family would get the insurance and Louie would get the businesses. However, after being named the administrator of the estate of his brother, Louie had a change of heart and gave each of the girls $5, and gave the widow a $40, bonus and the title to her home and kept the business assets and the insurance proceeds. The wife sued and at trial wanted to testify about the verbal agreement between her deceased husband and Louie. The defense counsel objected and cited the Dead Man s Act claiming that she was an interested party (which is true) and that the Estate should be protected from her interested testimony with the decedent which was contrary to the interest of the Estate. The court, actually very new to the bench, was confronted with an appeal for certain regardless of how he ruled. However, since there was, not only the Decedent s wife, whose interest was on trial but also two minors, her daughters, the court allowed her to testify. The court ruled that her testimony as a witness for the minors was independent of her own interest and the court received the same into evidence for a limited and cumulative purpose. The appellate court, upholding the lower court decision stated that circumstantial evidence can be used to prove a fact and that since the evidence was both circumstantial and cumulative there was no harm to the Estate. Certainly, had the widow testified in a case where she was the only witness and had such a great interest, her testimony would have been barred. What we learn by this is that in the case where there are two separate cases, each interested party might be allowed to testify as to the other s case and not in their own if the testimony is not the sole basis for liability. I personally have some additional opinions which are not law yet but I am certain the case will come along to make new law. Recently I tried a Third Municipal Court Case which concerned a rear end auto collision between a female Plaintiff and a Defendant who died well after the accident. The Defendant had reported this accident to State Farm Insurance Company and admitted he had rear ended the Plaintiff without Page 12

13 excuse. I tried to get the insurance records into evidence. The court disallowed such discovery with an admonition to me. I further brought up the fact that the law in Illinois does not allow a personal injury victim to sue for any amount over that which the decedent-defendant was insured for. In other words, the decedent s personal Estate was insulted from attack by the Plaintiff by the Illinois Probate Act. Dead Man s Act and Protecting the Estate of the Decedent One aspect of the Dead Man s Act which has never been reviewed by our Supreme Court is the fact that the Dead Man s Act is intended to protect the Estate of the decedent. However, in a case where a defendant driver has died leaving an insurance policy to cover the accident, then the only asset of his estate that can be attacked is the AUTO INSURANCE POLICY for which he paid a premium. Allowing the Plaintiff to testify as to the accident facts cannot harm, in any way, the financial interests of the decedent or his Estate. Section 5/ of the Illinois Code of Civil Procedure: Change in interest states: (b) 2.The recovery shall be limited to the proceeds of any liability insurance protecting the estate. Therefore, the true party in interest is the Insurance Company who collected a premium and now owes a contractual duty to pay legitimate claims against the Estate. It is the Insurance Company and not the defendant-decedent who interposes this defense and is not a legitimate concern of the Dead Man s Act that was meant only to protect the Deceased and his Estate. No cases as yet, have decided this issue. Illinois is one of the States which protects Insurance Companies vigorously. In neighboring states we sue the Insurance Company directly. However, in Illinois, the Insurance lobby, which is more prosperous than the Illinois bar makes the mere mention of the word insurance a grounds for a mis-trial with costs to the Plaintiff. Page 13

14 Review We have completed our study of the Illinois Dead Man s Act so now is a good time to apply what we have learned to a case scenario. Consider an automobile operated by defendant #1, in which Plaintiff and her motherin law were passengers but only the Plaintiff was injured. That vehicle collides with an automobile operated by defendant #2. A witness to the accident is found at the scene. Plaintiff files suit right after defendant #1 testifies in traffic court that the accident was his fault and then defendant #1 dies. A police officer investigated the accident before the vehicles were moved. Who may or may not testify at the trial of the cause of action? Obviously the Plaintiff and Defendant #2 are limited as interested parties to their personal observations protected by the Rerack Case. They can testify as to the condition of the weather, their cars, etc. but cannot attempt to describe the actions of the decedent in vehicle #1 causing the accident. The mother-in law is an independent eye witness if not making a claim or at least independent as to the Plaintiff s injury case under The Prignano Case. The police officer may be both an expert witness as to the evidence left at the scene and as a witness to the res-gestae. However, if defendant #1 s representative at trial presents testimony from an independent witness it may open the door to the Plaintiff being able to testify as to the facts of the occurrence. Prior to trial the Plaintiff s attorney should attempt to get the insurance company file and the transcript from the traffic court and take the evidence deposition of the reporting police officer. Page 14