Fraudulent concealment

[mthelaw]

Jurisdiction

Illinois

I am writing from Illinois with a question about civil law. I've read the legal definition of fraudulent concealment as well as several explanations. The law seems to be written to address the issue of a defendant having concealed information from a plaintiff in order to induce the plaintiff to act in such a way that will actually be detrimental to the plaintiff. Does the law not recognize that a plaintiff might conceal evidence? In particular, what about a case where the plaintiff appears in court, and during the course of the trial conceals evidence that would not only benefit the defendant, but would influence the judge to render a decision in favor of the plaintiff? Is there another definition of concealment that applies to such a situation?

 

[flyingron]

Fraudulent concealment applies to things prior to the court case. If a party in active civil litigation conceals something they were obligated to present during the case, then there are different sanctions.

There's no general obligation for a party in a lawsuit to voluntarily disclose information to his detriment. The obligation for disclosure is limited to answering specific legal requests for information (discovery, interrogatories, etc...). This is different from a criminal prosecution where the prosecution has a duty to disclose exculpatory evidence.

 

[zddoodah]

Your post has nothing to do with "fraudulent concealment." Fraudulent concealment is a tort whereby one person fails to disclose a fact to another person that causes the other person to act to his detriment. The relationship between the two persons must be such that the first person has a legal duty to make the disclosure.

Does the law not recognize that a plaintiff might conceal evidence?

As phrased (in the negative), the answer to this question is no.

what about a case where the plaintiff appears in court, and during the course of the trial conceals evidence that would not only benefit the defendant, but would influence the judge to render a decision in favor of the plaintiff?

What about it?

What does "during the course of the trial conceals evidence" mean? A plaintiff is not required to offer evidence at trial that is detrimental to his/her/its case during a trial, and the failure of the plaintiff to offer such evidence is not "concealment" (much less fraudulent). If there's evidence that is detrimental to the plaintiff's case and/or favorable to the defendant's case, it's incumbent on the defendant to offer that evidence.

Is there another definition of concealment that applies to such a situation?

You're going to have to be more clear as to what you're talking about.

There's no general obligation for a party in a lawsuit to voluntarily disclose information to his detriment.

I agree subject to one caveat. In federal court and in states that have adopted rules of civil procedure based on the Federal Rules of Civil Procedure (which is a significant number of states, but I don't know if IL is one of them), there is a requirement to disclose certain information without a formal discovery request.

 

[adjusterjack]

mthelaw, is there something happening to you that gives rise to the question? In other words, are you a participant in a court case where you believe your opponent is concealing information that may be helpful to your case?

Details count.

 

[mthelaw]

Since the issue at hand is a case on appeal, I am worried about not being to present the evidence of concealment, if that's the right word, since it would entail introducing evidence that is not already part of the record. The problem is that it is not part of the record because it has been concealed. The plaintiff voluntarily denied its existence during testimony which I am hoping gives me the opening I need to reveal it.

 

[flyingron]

You're not going to force previously undisclosed to be produced and considered at the appeal. The best you can have is show that something that should have been disclosed at the trial was not and get a remand with an order for disclosure. The problem, however, is likely that it's untimely to bring this up at appeal. Why didn't you do so at the first trial?

Appellate courts aren't really a place for amateurs to be going pro se.

 

[adjusterjack]

Since the issue at hand is a case on appeal, I am worried about not being to present the evidence of concealment,

You were asked for details and haven't provided any. I wonder why.

Your additional comment appears to have revealed that you were a defendant in a lawsuit and lost the case. You say that the plaintiff testified and during that testimony denied the existence of "something" that would have helped your case. You were right there. Why didn't you address that something at that time?

Anyway, if this was a small claims case, you're out of luck.

Rule 287. Depositions, Discovery and Motions
(a) No depositions shall be taken or interrogatories or other discovery proceeding or requests to admit be used prior to trial in small claims except by leave of court.

http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_II/ArtII.htm#287

The plaintiff had no obligation to reveal anything to his detriment.

 

[zddoodah]

Since the issue at hand is a case on appeal, I am worried about not being to present the evidence of concealment, if that's the right word, since it would entail introducing evidence that is not already part of the record. The problem is that it is not part of the record because it has been concealed. The plaintiff voluntarily denied its existence during testimony which I am hoping gives me the opening I need to reveal it.

As I mentioned previously, a plaintiff is not required to offer evidence at trial that is detrimental to his/her/its case during a trial, and the failure of the plaintiff to offer such evidence is not "concealment" (much less fraudulent). If there's evidence that is detrimental to the plaintiff's case and/or favorable to the defendant's case, it's incumbent on the defendant to offer that evidence. If the defendant fails to do that, then that's on the defendant. On appeal, it's way too late.

Impossible to say much more than that without some context. Can you tell us what the evidence was and how the plaintiff supposedly concealed it?

 

[mthelaw]

I am not a pro se litigant by choice. The reason these issues weren't addressed during the trial is I was represented by legal counsel and I deferred to his professional judgement. It's only since the trial that I've learned how many mistakes were made in my name. I'm not trying to hide anything. If I knew what details you need to know I'll give them to you. You seem to have already answered my question which is that the appeals court doesn't allow for the challenging of trial court testimony under any circumstances.

The evidence the plaintiff wanted to conceal is city building inspector reports. The plaintiff concealed this evidence not only by not revealing the report, but by treating the city's Building & Inspectional Services Division as a nonentity, which is quite blatant since the building inspectors have it within their authority to set in motion a series of events which could logically result in the loss of the plaintiff's license to operate. The plaintiff received a copy of the report because of the procedure documented in the city code. The plaintiff wants to conceal the report because it doesn't agree with the plaintiff's personal opinion and because the plaintiff would not want to have to explain why the plaintiff's personal opinion has more credibility than the professional opinion of a licensed building inspector.

 

[flyingron]

Well, you're likely screwed. In civil cases, the threshold for arguing ineffective counsel are pretty high. It's not even clear that such existed.

Your second paragraph makes no sense, particularly the second sentence. Again, there's little obligation for the plaintiff to volunteer up any evidence. Unless you specifically asked for something that would have encompassed the building inspection, or there was some other duty to disclose (sounds like we are talking about commercial space here, mandatory disclosure of property defects in Illinois only applies to residences), there's nothing to act upon, even if you'd brought it up at trial.

 

[zddoodah]

The reason these issues weren't addressed during the trial is I was represented by legal counsel and I deferred to his professional judgement. It's only since the trial that I've learned how many mistakes were made in my name.

Then you might have a claim against your former attorney for legal malpractice. You'd have to prove that no reasonable attorney would have made the judgment calls he made.

You seem to have already answered my question which is that the appeals court doesn't allow for the challenging of trial court testimony under any circumstances.

I certainly didn't write that, and it's not true as phrased. The appellate court will not, however, consider any new evidence on appeal.

The evidence the plaintiff wanted to conceal is city building inspector reports. The plaintiff concealed this evidence not only by not revealing the report

And again -- for the third time now -- it is not the plaintiff's responsibility to offer evidence that is not favorable to its case. That's no "concealment" and certainly not fraudulent. The plaintiff's job is to offer evidence that is FAVORABLE to its case and to try and minimize evidence that isn't favorable. It is the defendant's job to offer evidence that is harmful to the plaintiff's case. If a city building inspector report is unfavorable to the plaintiff's case, of course the plaintiff is going to try and ignore it.

but by treating the city's Building & Inspectional Services Division as a nonentity

I have no idea what this means.

The plaintiff wants to conceal the report because it doesn't agree with the plaintiff's personal opinion and because the plaintiff would not want to have to explain why the plaintiff's personal opinion has more credibility than the professional opinion of a licensed building inspector.

Sounds perfectly sensible to me.

 

[army judge]

The plaintiff wants to conceal the report because it doesn't agree with the plaintiff's personal opinion and because the plaintiff would not want to have to explain why the plaintiff's personal opinion has more credibility than the professional opinion of a licensed building inspector.

Do you understand the differences between conjecture and proof?

I have yet to acquire the ability to discern motives from actions.

The plaintiff in a civil lawsuit MUST prove by a preponderance of the evidence.

That means that the plaintiff must prove what is asserted and the damages by showing that something is more likely so than not, as in 50.1% versus 49.9%.

In some cases, defendants fail to see the .2% delta, which accounts for the plaintiff prevailing.

 

[mthelaw]

I'm sorry for the inappropriate use of legal terminology, whether it be concealment or something else. What I know is that there is evidence that would be to my advantage but which is apparently beyond my reach.

To zddoodah: I have never entertained the idea of pursuing a legal malpractice suit against my former attorney. I only mentioned him because I was responding to the question from adjusterjack and flyingron as to why I didn't I raise certain questions during the first trial. I wanted to make it clear that at the time I was being represented by a legal professional. As to why he didn't raise those questions I can't say. Also, under what circumstances would it not be acceptable to challenge trial court testimony in an appeal?

 

[welkin]

Also, under what circumstances would it not be acceptable to challenge trial court testimony in an appeal?

In all cases it is not acceptable to challenge trial court testimony on appeal. The time to have challenged the testimony was in the lower court.

The appellate courts do not retire the cases. They work off the record of the lower court. And if there is something not in the lower court record, they will not even consider it.

The evidence the plaintiff wanted to conceal is city building inspector reports.

An example: You obtained the report through discover and tried to introduce it into evidence during trial but judge didn't allow it. That might be a reversible error depending on the judge's ruling. But the report on appeal doesn't get put into the record for consideration.

 

[zddoodah]

I'm sorry for the inappropriate use of legal terminology, whether it be concealment or something else. What I know is that there is evidence that would be to my advantage but which is apparently beyond my reach.

I wasn't quibbling over your use of terminology. What you described isn't anything. No sane lawyer would offer evidence that isn't favorable to his/her client's case, and that's all you seem to be describing. Apparently, your lawyer made a strategy decision not to offer the evidence in question. Obviously, no one here can intelligently critique that decision without knowing all about your case and having read the evidence.

under what circumstances would it not be acceptable to challenge trial court testimony in an appeal?

You wrote "that the appeals court doesn't allow for the challenging of trial court testimony under any circumstances," and I wrote that this isn't true as phrased, so your question here doesn't entirely make sense.

The reason why I wrote that your statement is not true as phrased is because it's sufficiently vague that it may cover arguments that certain testimony should not have been admitted or allowed by the trial court, which arguments are appropriate on appeal (as long as the admissibility of the testimony was properly challenged at the trial court level). Of course, if, when you referred to "the challenging of trial court testimony," you were talking about making arguments that certain testimony was not credible and shouldn't have been believed, that is not proper on appeal.

 

[cbg]

Okay, I'll give it a shot, and if I get the concepts wrong, Tax or zddoodah is welcome to correct me.

mthelaw, if, in the course of their investigation, the plaintiff discovers PREVIOUSLY UNKNOWN information that neither side is aware of, and that information is favorable to the defendant, they are obligated to make the defendant aware of the information.

However, the plaintiff has no obligation whatsoever to raise issues that are favorable to the defendant, if the defendant is aware of the information. That's the defendant's job.

 

[zddoodah]

Okay, I'll give it a shot, and if I get the concepts wrong, Tax or zddoodah is welcome to correct me.

mthelaw, if, in the course of their investigation, the plaintiff discovers PREVIOUSLY UNKNOWN information that neither side is aware of, and that information is favorable to the defendant, they are obligated to make the defendant aware of the information.

As phrased, that's not correct.

In general, a party to a civil lawsuit has no obligation to disclose any information or document to the other side. There are two exceptions. First, a party may obtain discovery of facts, testimony and documents by serving written discovery requests or by taking depositions. Second, in some jurisdictions (although it appears Illinois is not such a jurisdiction) there are limited disclosure obligations that do not require service of a formal discovery request.

In the case of written discovery requests, the responding party is required to disclose responsive facts and documents known to or possessed by the party at the time the response is due. In the case of a deposition, the witness has no obligation but to answer the questions asked to the best of his/her knowledge at the time of the deposition. In either case, there is no obligation to volunteer information or documents that are not requested. Nor is there any obligation to disclose newly discovered information or documents after responses are served, unless the jurisdiction allows for discovery obligations to be continuing in nature. In Illinois, Rule 214 of the Illinois Rules of Civil Procedure provides that "A party has a duty to seasonably supplement any prior response to the extent of documents, objects or tangible things which subsequently come into that party's possession or control or become known to that party." A similar rule applies to interrogatory responses, but not to deposition testimony.

Thus, in order for a party to have an obligation to disclose newly discovered facts or documents, another party must have requested such facts or documents via an interrogatory or document request.

However, the plaintiff has no obligation whatsoever to raise issues that are favorable to the defendant, if the defendant is aware of the information.

As I've written thrice previously, a plaintiff (or any party to a civil lawsuit) has no obligation to do anything at trial that is harmful to its own case. Once you get to trial, it's all about your own case. You emphasize the good and don't mention the bad (although a party that knows another party will offer adverse evidence may want to be proactive in dealing with it, but that's completely a strategy decision).

 

[cbg]

Thank you for the clarification, zddoodah.

 

[adjusterjack]

The evidence the plaintiff wanted to conceal is city building inspector reports.

Please satisfy my curiosity. You're the defendant. You got sued. You lost.

What, exactly, did you get sued for? Why and for how much money?

What was in this inspector report that would have helped your case?

And I don't think this has been answered yet. Was this in small claims court or regular civil court?