You might be surprised how often thorny evidentiary questions arise in mediation. It usually follows this script: Party A has a juicy fact about Party B. Maybe Party B has filed prior lawsuits alleging similar injuries, has credit issues, or—as in a recent appellate decision—has a criminal conviction. Party A believes the fact will come into evidence at trial and diminish Party B’s chance of winning. Almost always, Party B knows of the juicy fact and argues that it will not be admissible. What should the parties do?
In mediation, what we know for sure is that this evidentiary issue will most likely come up at trial in a motion in limine.
In Kozik v. Union Pacific Railroad Co., 2025 IL App (1st) 242219, the plaintiff had a prior conviction for embezzling money from his employer. After the conviction, he paid restitution, maintained steady employment, had no further brushes with the law, supported his wife and child, and even coached his child’s baseball team. Several years later, the plaintiff was found unconscious at work, surrounded by broken cement, and it appeared that he had been struck by falling debris. Thereafter, he suffered from anxiety, depression, and panic attacks, all of which are common with closed-head injuries.
He filed suit against his employer pursuant to the federal Employers’ Liability Act (FELA), alleging that he was no longer able to work. Before trial, however, the plaintiff applied for and received a Certificate of Good Conduct, which was originally enacted to eliminate barriers to housing and employment resulting from a prior criminal conviction. Because the circumstances of the injury and the extent of the plaintiff’s injuries were subjective, his credibility was a major issue.
The trial court ruled that the prior conviction was inadmissible under the Supreme Court Rule governing Certificates of Good Conduct. The jury returned a $3.5 million verdict in the plaintiff’s favor, and the defendant appealed based on the admissibility of the prior conviction.
The appellate court reversed, finding that the Certificate of Good Conduct was not the equivalent of a pardon or annulment under the rules of evidence. The conviction was less than 10 years old and involved a crime of dishonesty. Furthermore, the court was troubled by the plaintiff’s application for the Certificate just a few months before trial, with no mention to the court of the plaintiff’s specific motivation concerning his pending FELA lawsuit. The court found that the probative value of the conviction outweighed the possible prejudice, especially because it was a civil case rather than a criminal matter.
In your mediations, bringing case law and the relevant rule of evidence to the attention of your mediator can shortcut prolonged discussion of admissibility and, ultimately, of who will win at trial. If I had a situation similar to the facts in the Kozik decision, I would use the case law with the other side. To compromise, they need to see the real legal arguments that will be presented to the court. Moreover, this discussion can move a hesitant party toward a realistic settlement number.
In your mediations with me, let me know in advance of any evidentiary issues, and we can address them together. These conversations can be game changers.
