In commercial litigation, particularly where litigation starts prior to the time the plaintiff is aware of all the facts but suspects significant wrong-doing on the part of the defendants, it is not uncommon to arrive at trial with evidence which is substantially more damning than that which was known (and therefore alleged) in the complaint. Litigators are often keenly aware of the restrictions of Supreme Court Rule 137 and Federal Rule 11 at the time of the drafting of their complaint and are, therefore, reluctant to allege more than they can actually prove at the time of the filing. The difficulty with that caution is that it can tend to limit the proofs at trial if counsel is not vigilant to amend as discovery progresses to insure that the pleadings specifically allege the evidence which counsel intends to introduce.
Federal Rule of Evidence 401 does not specifically recognize Materiality as a specific basis for objection. The rule defines "Relevant Evidence" as ". . . evidence having any tendency to make the existence of any fact THAT IS OF CONSEQUENCE TO THE DETERMINATION OF THE ACTION more probable or less probable than it would be without the evidence." The Advisory Committee’s Note seems to intentionally eschew the use of the word materiality where it describes the above-highlighted phrase as having . . . "the advantage of avoiding the loosely used and ambiguous word ‘material’. . ." Perhaps that determination is attributable to the federal preference for notice pleading as opposed to our state court rules requiring fact pleading; perhaps not.
"Evidence must be material to be admissible." In Banovz, evidence of a defendant driver’s intoxication was admitted ostensibly to prove that the defendant was negligent while driving under the influence. Neither of the two plaintiffs had alleged intoxication in their complaint against the driver of the car in which they had been passengers. Rather, intoxication was alleged in counterclaims for contribution which the appellate court held should have been dismissed based upon good faith settlements between the plaintiffs and the co-defendants of plaintiffs’ driver. The court held that since the allegations of intoxication should have been dismissed along with the counterclaims for contribution, the plaintiffs, having failed to allege it in their complaints should not have been able to introduce the evidence as to an issue which they had failed to raise. The Banovz court held that ". . . evidence is material when it is offered to prove a proposition which is in issue or is probative of a matter in issue. . .AND THE ISSUES ARE DEFINED BY THE PLEADINGS"[Emphasis supplied].
A pleading ". . . consists of a party’s formal allegations of his claims or defenses." Section 2-616 of the Code of Civil Procedure governs amendments of pleadings. Section (c) provides: "A pleading may be amended at any time, before or after judgment, to conform to the proofs, upon terms as to costs and continuance that may be just." The rub is that a timely materiality objection should preclude the introduction of the proofs with which an attorney may want to conform the complaint.
Subsection (a) of section 2-616 allows amendments ". . .[A]t any time before final judgment . . .on just and reasonable terms . . " Illinois has a policy of permitting liberal amendments of pleadings. That right is not absolute and a denial of a motion to amend will not be overturned absent a clear abuse of discretion.
Generally, once a trial has begun, amendments are not favored. That is especially true where the facts sought to be alleged are or should have been known at the time the original pleading was filed and not good reason is offered for their not having been previously filed. Further, where the amendment is prejudicial ". . . or would alter the nature and quality of proof required to defend."
During the run up to trial, therefore, it would seem wise to review one’s complaint to make sure the evidence which is so essential to success has been made material to the case as defined by the complaint. Conversely, counsel who is aware of troubling evidence which is not properly alleged may want to consider the filing of a motion in limine at the commencement of trial or, at the very least having a trial brief on the issue to support the materiality objections which can properly be made during the trial.
John Pcolinski, Jr., Editor, is a partner in the Wheaton, Illinois law firm of Guerard, Kalina & Butkus and Adjunct Professor of Business Law at North Central College in Naperville, Illinois. Licensed in Arizona since 1986 and Illinois since June of 1987, his practice is concentrated in all phases and types of civil litigation with an emphasis on chancery matters including trade secret and non-competition clause litigation.