Witnesses play a pivotal role in determining the outcome of divorce case in Illinois. Whether you’re dealing with financial disputes or parenting issues, having the right witnesses and a well-prepared witness list can make or break your case. In this post, we’ll explain what a witness list is, why it matters, and how to choose and prepare witnesses effectively to present your parentage or divorce case in the best light.
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Why Witness Lists Matter?
In Illinois, courts decide each divorce based on the same statutes, case law, and general practices. While this provides a model for how courts will resolve financial and parenting issues, each marriage and divorce is unique in its disputes and the facts behind each spouse’s position. Each dispute is rooted in facts—sometimes two sets of facts—that both sides must present to resolve. Often, parties only reach resolution after a hearing or trial, where they present facts through physical evidence and testimony.
When preparing your case, consider what evidence will best support your position. It’s essential to think about what testimony will strengthen your case and who can provide it. This is where witnesses and witness lists play a crucial role.
What Is a Witness List in an Illinois Divorce Case?
A witness list includes individuals a party may call to testify in court. Illinois Supreme Court Rules – Rule 213 on Written Interrogatories outlines the requirements for disclosing witnesses in Illinois case. Before calling a witness, you must disclose their name, contact information, and the subject they are expected to testify about to the other party. There are two types of witnesses in family law cases: expert witnesses and lay witnesses.
Lay witnesses are generally friends or family members, but they can also be individuals with direct personal knowledge of an event or person. You must provide a list of lay witnesses with their names, contact details, and a summary of their expected testimony.
Expert witnesses are generally professionals hired by one spouse to provide an opinion on specific aspects of the case. Before an expert witness can testify, their education, professional experience, and expertise must be confirmed. The judge also needs to qualify them as an expert before they can testify.
What Do You Do With Your Witness List?
You must send your written witness list to the opposing party by email or mail. The list provides your spouse with notice of the individuals you might call as witnesses and what they will testify about. Sharing their contact information allows your spouse to contact them and ask questions about their testimony.
Unlike the legal dramas on TV, there shouldn’t be any courtroom surprises—especially surprise witnesses—during a hearing or trial. Generally, witness lists are due at least seven to fourteen days before the hearing. This gives both sides time to investigate the witnesses and prepare questions to ask them on the stand if they choose to do so.
As you prepare for a hearing or trial, it’s important to understand that notice is a key part of the legal system. You are required to provide your information, evidence, and witness details to the opposing party, and they must do the same for you. If you do not provide a witness list and then try to bring a witness to court, the judge is likely to rule that your witness cannot testify because you didn’t give notice. This would limit your ability to present your case and reduce your chances of success. Worse, the judge might issue sanctions for failing to give notice. If the opposing party fails to notify you, they will face the same consequences.
How to Choose the Right Witnesses for Your Case?
When selecting witnesses, it’s critical to consider the facts of your case and how those facts will be communicated in court. Your witnesses’ testimony must tell a story that presents your case in the most favorable light to the judge. Keep in mind that the judge, as the fact finder, determines who they believe is credible. Their judgment about credibility will directly impact what information they accept as “facts” when deciding the outcome of your case.
Start by choosing witnesses who have firsthand information that aligns with the narrative and facts you want the judge to hear. Pick the person who knows the most about the facts that support your position. Avoid calling multiple witnesses who would provide the same information or witnesses who have limited knowledge. Instead, choose one or two key individuals who can provide the most useful testimony and remain composed during cross-examination by the opposing party or their attorney.
Before calling anyone to testify, make sure you know exactly what they will say on the stand. This means asking questions to confirm their recollections, opinions, and observations ahead of time. Surprises during testimony can hurt your case, so preparation is key.
Preparing Your Witness
When choosing a witness, you must know exactly what they will say on the stand. They should have personal knowledge of the subject matter they will testify about. For example, if you need someone to testify about your parenting skills, choose someone who has a personal relationship with you and your children. Ideally, they should have seen you parent multiple times or directly observed your abilities as a parent. This could be a grandparent, daycare provider, or family friend—someone who has spent time with you and your children and can testify about your interactions and relationship.
To prepare, ask your witness questions ahead of time before you put them on your witness list or call them to the stand. There should be no surprises during their testimony. For example, you or your divorce attorney must ask your potential witness about their observations of your parenting and the bond between you and your children. You need to be certain of what your witness will say in court so you can decide whether to have them testify on your behalf.
Finally, it is crucial to have someone who can speak to their personal observations and opinions, rather than repeating what they’ve heard from someone else or offering a lot of “I don’t know” or “I can’t remember” on the stand. If the testimony is about a specific event, choose someone with direct knowledge of that event who can verify your account of what happened. Ideally, this person will have personally witnessed the event and has a clear recollection of it. Similarly, if someone is testifying about a relationship, make sure they know the people involved and can speak to how they interact with each other. It’s those specific details and interactions that make a witness credible and informed.
Witness Credibility and Effectiveness
When choosing your witness, consider both the information they can provide and how they will appear to the judge as they tell their story. You want your witness to appear knowledgeable and credible to the judge. They should look like they are telling the truth as they know it and be honest when they don’t know or can’t remember something. Make sure your witness has direct knowledge of what they are testifying to and is not simply repeating what someone else said. That’s hearsay, which is inadmissible and will be excluded by the judge.
Choose witnesses who have clear and specific memories, observations, and opinions to offer in court. You also need someone who can manage their emotions and stay composed on the stand, knowing the opposing party and their attorney will try to make them lose their temper or look bad. Your witness must remain calm under pressure and be able to handle the difficult questions asked during cross-examination. If your witness can’t control their temper or provide clear recollections, they are unlikely to help your case.
When you put uninformed witnesses on the stand, the judge assumes you lack facts to support your case. Putting someone who appears to be lying on the stand makes you seem untrustworthy, which can severely hurt your case.
Conclusion and Next Steps
The right witnesses can make a big difference in how your divorce case plays out. Preparing your witness list and ensuring strong, credible testimony will help you present your side clearly in court. If you have questions about witness preparation or any other part of your divorce case in Illinois, reach out to our family law attorneys. We’re here to guide you and protect your rights.
