SUPREME COURT RULE ON AFFIDAVITS LIMITED TO THREE CATEGORIES

June 10, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Two common mistakes with affidavits are (1) ignoring the requirements of Supreme Court Rule 191(a) and, at the other extreme, assuming Rule 191(a) applies to every affidavit submitted during litigation.

Making the second mistake when denying a motion to transfer a personal-injury case to DuPage County, a Cook County judge concluded that the defendants failed to present proper evidence because the supporting affidavit from a railroad executive failed to comply with Rule 191(a).

The affiant was Donald E. Corp, the risk manager for Illinois Central Railroad and Chicago, Central and Pacific Railroad. Documents Corp relied on were not authenticated or attached to the affidavit, and the trial judge -- acting without any objection from the plaintiff -- rejected the affidavit as being based on hearsay and not in compliance with Rule 191(a).

Reversing, the Illinois Appellate Court explained that with motions forum non conveniens motions, "and other types of civil proceedings not encompassed under Rule 191(a), there is a more relaxed standard for judging the sufficiency of affidavits." Botello v. Illinois Central Railroad Co., 2004 WL 885201 (1st Dist., April 26).
Here are some highlights of Justice Joseph Gordon's opinion (with various omissions not noted in the quoted text):

"Supreme Court Rule 191(a) provides in pertinent part: 'Affidavits in support of and in opposition to a motion for summary judgment under section 2- 1005 of the Code of Civil Procedure, affidavits submitted in connection with a motion for involuntary dismissal under section 2-619 of the Code of Civil Procedure, and affidavits submitted in connection with a motion to contest jurisdiction over the person, as provided by section 2-301 of the Code of Civil Procedure, shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.'

"Thus, by its own terms, Supreme Court Rule 191(a) is applicable only to affidavits under sections 2-1005, 2-619 and 2-301(b) of the Code of Civil Procedure and does not apply to affidavits filed in conjunction with any other type of civil proceedings. Notably, Rule 191(a) omits from its scope affidavits filed in support of forum non conveniens motions pursuant to Supreme Court Rule 187. Generally, in these and other types of civil proceedings not encompassed under Rule 191(a), there is a more relaxed standard for judging the sufficiency of affidavits. For instance, the standard is met in certain civil cases if the affidavit merely sets forth facts within the personal knowledge of the affiant.

"Supreme Court Rule 187, which, as noted, specifically pertains to affidavits filed in support of forum non conveniens motions, provides in pertinent part: 'Hearings on motions to dismiss or transfer the action under the doctrine of forum non conveniens shall be scheduled so as to allow the parties sufficient time to conduct discovery on issues of fact raised by such motions. Such motions may be supported and opposed by affidavit. In determining issues of fact raised by affidavits, any competent evidence adduced by the parties shall also be considered. The determination of any issue of fact in connection with such a motion does not constitute a determination of the merits of the case or any aspect thereof.'

"As is the case with other non-Rule 191(a) affidavits, affidavits filed under Rule 187 are determined by a different standard than the sufficiency of those affidavits required under Rule 191(a) for motions for summary judgment (section 2-1005), involuntary dismissal (section 2-619) or jurisdiction over a person (section 2-301(b)).

"Both federal and state courts agree that the sufficiency of affidavits filed in support of a forum non conveniens motion is measured by the extent to which it allows the trial court to balance the private- and public-interest factors. These cases do not require that the information contained in the affidavit necessarily be based upon firsthand knowledge, as long as the affidavits are factually sufficient.

"The courts agree that, based upon the difference in the stage of litigation which invokes the issue of summary judgment and that which invokes forum non conveniens, an affidavit filed in support of a forum non conveniens motion requires less specificity and less detail. This distinction which the courts have drawn between forum non conveniens and summary judgment motions as to specificity and level of detail is consistent with the fact that the affidavits filed under Rule 187 are omitted from the prerequisites set forth in Rule 191(a). Accordingly, we are not convinced that affidavits should be considered insufficient even if they contain elements of hearsay.
"We further note that, although the sufficiency of affidavits under Rule 187 was considered and tested in Cotton, Haring and Walker, none of these cases invoked a hearsay exclusion with respect to those affidavits. See Cotton v. Louisville & Nashville R.R. Co., 14 Ill.2d 144, 152, 152 N.E.2d 385, 389 (1958); see Haring, 103 Ill.2d at 533, 470 N.E.2d at 289; see also Walker, 132 Ill.App.3d at 630, 477 N.E.2d at 1341. All three cases involved the question of how much detail was required in an affidavit filed in support of a forum non conveniens motion.

"In Cotton, the court, in denying the transfer, found that the defendant had not satisfied its burden of proof. The failure of the defendant to give the names of witnesses, to indicate what their testimony would be and to show how vital the testimony would be furnished a reasonable basis for the trial court to find that the defendant had not met the burden of proof. However, in Haring, the defendant averred names and addresses of post-accident witnesses along with names and addresses of medical witnesses.

"The Supreme Court in Haring found the contents of that affidavit were sufficient to demonstrate that there were witnesses necessary to the trial whose testimony could be more conveniently produced in the alternate forum.

"For that same reason in Walker, the court found that an affidavit that named the employees and their county of residence, the port engineer and his county of residence, the medical center where plaintiff received treatment, the location of employment records and the location of the defendant's representatives familiar with the case was sufficient to warrant a transfer.

"The affidavit in support of defendants' motion in this case did not contain the type of general allegations found to be deficient in Cotton. Instead, this case resembles Haring and Walker, in that the Corp affidavit set forth names and addresses of CCP employees present at the scene of the accident, names and addresses of police officers who reported to the scene of the accident, names and addresses of medical witnesses who treated or examined plaintiff as a result of the injuries, and the location of employment records. Therefore, the contents of the Corp affidavit sufficiently demonstrated that there were witnesses and information necessary to the trial of this case that could be more conveniently produced if the case was tried in the suggested alternate forum, rather than in Cook County. These contents meet the exact criteria for affidavits in support of forum non conveniens motions set forth by the Illinois Supreme Court.

"Moreover, even though we have concluded that under Supreme Court Rule 187 hearsay does not vitiate the affidavit, we note that it is not clear that the Corp affidavit in fact is built upon hearsay. We make reference to paragraphs 2 and 9 of the affidavit. In paragraph 2 Corp states 'as part of my job responsibilities as risk manager, I am required to familiarize myself with claims asserted against IC and CCP. As a result, I am familiar with the claim that has been asserted against IC by plaintiff Jamie Botello and have reviewed the documents kept in the ordinary course of business relating to Mr. Botello's claim.'

"Corp goes on in paragraph 9 to state that he went to the scene immediately following the accident and to Good Samaritan Hospital while plaintiff was being treated. These statements demonstrate that his affidavit was not based on hearsay, but on his own investigation.

"Paragraphs 2 and 9 were included in Corp's affidavit to establish the fact that Corp had personal knowledge of the location and details of the accident. They were not included to establish the truth of any statements made by CCP staff, hospital representatives, Addison police officers or anyone else other than the affiant, Corp. The value of those statements, therefore, does not hinge upon the credibility and veracity of anyone other than Corp. Only Corp can be held liable for perjury if the statements contained in the affidavit are untrue. R. Hunter, Trial Handbook for Illinois Lawyers, Civil, section 48.12 at 193 (7th ed. 1997). Clearly, Corp's statements are not encompassed within the definition of hearsay provided above.

"Furthermore, even if forum non conveniens affidavits were subject to hearsay restrictions, it would not be good practice for the trial court to strike such affidavits on their own, without objection from plaintiff. Failure to object to hearsay during trial allows such evidence to be considered by the trier of fact and to be given its natural probative effect as if it was in law admissible.

"Therefore, if after defendants filed their motion, there was any question as to the admissibility or veracity of the statements made in Corp's affidavit, the trial court, as a matter of good practice, should not have intervened before plaintiff first moved to strike the affidavit. In the absence of a motion to strike any objection to the hearsay content, which could otherwise have been made, would have been waived even if the standards of Rule 191(a) were to apply. Instead, the court here sua sponte rejected the affidavit and advised plaintiff to do nothing more, not even to file a counter-affidavit. The trial court instructed plaintiff that no response was necessary and that the order would be issued based on the facts contained in defendants' affidavit and memorandum.

"Based upon the foregoing, the trial court erred when it determined the sufficiency of Corp's affidavit under Supreme Court Rule 191(a). Had Corp's affidavit in support of the motion to transfer been properly considered in conjunction with Supreme Court Rule 187, there would have been no question as to the sufficiency of that affidavit. The contents of the Corp affidavit were sufficient to demonstrate that there are witnesses and information necessary to the trial of this case that could be more conveniently produced if the case is tried in DuPage County, rather than in Cook County."

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