Don't Bet the Business

Trial lawyers know that the decision whether to admit evidence is within the sound discretion of the trial court. On appeal, those decisions generally will not be overturned absent an abuse of discretion. Even when an error in the admission or exclusion of evidence does occur, it typically will not result in a reversal unless a substantial right of a party is affected.

At trial, argument over the admissibility of some piece of evidence often is preceded by little more than the most cursory of arguments, generally no more than the identification of the evidentiary rule the proffered evidence follows or purportedly offends. Indeed, decisions over relevance come fast and, as noted above, there is little recourse when mistakes are made. 

One of the surest ways to lose a relevancy objection is to confuse or merge the concepts of relevance and materiality, yet it happens all the time.

Generally, for evidence to be admissible at trial it must first be shown to be relevant. The corollary is equally true; evidence is inadmissible if it is not relevant. To be considered relevant, evidence must have any tendency to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence. Not surprisingly, a fact is of consequence if it is material. At first blush the relationship between relevance and materiality appears to be circular, or even synonymous – but it’s not. 

Think of it this way; relevance contains within it two components – materiality and probative value. Thus, relevant evidence is also material and probative. Evidence is “material” if it is being offered to prove an element of a claim or defense that needs to be established for one side or the other to prevail. 

In an action alleging a breach of contract one of the elements that must be proven is that a contract exists between the parties. The evidence offered to prove the existence of the contract – a material fact – must be probative to that point; that is, the evidence must have some tendency to show that a contract exists.

For example, a written draft of a contract exchanged between the parties likely would be found to be a material fact and have some tendency to show that the parties actually struck an agreement. Equally true is that the same evidence may tend to show that no contract was formed because only a draft agreement exists. Either way, this fact is evidence that would be deemed material and probative and, therefore, relevant. 

Given the definition of relevance contained within the rules, even very weak material evidence is still relevant if it has any tendency to show the existence of the contract. This helps explain why so often even the very weakest of evidence – so long as it does not reach the speculative level – is often ruled admissible at trial “for whatever it’s worth.”  After all, it is for the trier of fact to judge the sufficiency or weight of the relevant evidence. 

So, given the tendency, particularly in bench trials to “let it all in so it can be sorted out later,” and understanding the sometimes blurry lines that exist when trying to judge the relevancy of potential evidence, pre-trial motions in limine may be the way to go when the stakes are high and the call is a close one. That is where experience helps. Remember, they call it “practicing law” for a reason.