Originally Published August, 2020
Using the legal rules of evidence to improve your business reasoning and writing
If you have ever watched a courtroom drama, you have probably heard the phrase, “Objection, relevance.” What does this mean, and how can it help our thinking, writing, and, as a bonus, maybe make us more informed viewers of our favorite TV shows? In this writing guide, we will use the legal rules of evidence to help writers focus on what is helpful, necessary, and to the point.
In order for evidence to be used in a trial, it must be relevant. If it is irrelevant, the evidence is said to be inadmissible and cannot be used. Attorneys can’t use it, and juries shouldn’t hear it. If one side tries to use information that is not relevant, the other side should protest to the judge, arguing that the information should not be allowed because it is not relevant. Or, as it is commonly stated, “Objection, Relevance.” The other side is then given an opportunity to explain to the judge why the evidence is relevant, and should be allowed.
Federal Rule of Evidence 401 tells us that evidence is relevant if:
a) It has any tendency to make a fact more or less probable than it would be without the evidence; and
b) The fact is of consequence in determining the action. (Fed R. Evid. 401)
Rule 401a: Helpful
Evidence that has “any tendency to make a fact more or less probable than it would be without the evidence,” must be helpful in proving something. For example, imagine you saw someone drink five shots of tequila before getting into a car, and you want to prove that the individual was intoxicated. Is evidence that someone drank five shots of tequila helpful in proving the individual’s intoxication? Of course. If the evidence has “any tendency” to make it more or less probable that the individual was intoxicated than it would be without the evidence, the first element of relevance is satisfied.
Rule 401b: Necessary
In addition to being helpful in proving something, what the evidence is trying to prove must also be necessary, or “of consequence,” in determining the outcome of the action. If the person who consumed the five shots of tequila is being charged with Driving While Intoxicated, then proving the driver’s intoxication is necessary in determining the outcome of the DWI action against him. The driver’s intoxication is “of consequence in determining the action” because if he was not intoxicated, he can’t be convicted of Driving While Intoxicated. But what if the tequila testimony is being offered in a product defect lawsuit against a car manufacturer because when the man stumbled into the car, the airbags immediately detonated, and the man suffered serious bodily harm? Whether or not the man drank tequila has nothing to do with whether or not the car manufacturer made a defective car that exploded. In both cases, the tequila consumption is helpful to prove the fact that the man may have been intoxicated. But although intoxication is necessary to charges of DWI, intoxication has nothing to do with whether or not the car manufacturer made a defective product that caused our tequila-drinker harm. Therefore, evidence of the five shots of tequila would be relevant and allowed in the DWI case, and irrelevant—and therefore not allowed—in the product defect lawsuit.
Straight to the Point
I’ll leave you with one more rule of evidence to help you with your business reasoning and writing. It’s Federal Rule of Evidence 403. It says that even if evidence is relevant, courts may still exclude it if “its probative value is substantially outweighed by a danger of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Imagine in our DWI case that the driver had been drinking five shots of tequila every night in the same bar for the past 20 years. There may be 1,000 people lined up who can testify that it is the habit of this individual to consume five shots of tequila every night. Is this evidence relevant to whether or not the individual consumed five shots of tequila, was intoxicated, and should be charged with Driving While Intoxicated? Of course. This evidence is helpful in proving the man was probably intoxicated, and proving intoxication is necessary to the DWI case. But at some point between the testimony of witness one and witness 1,000, any new value that the testimony could add will be substantially outweighed by the testimony’s waste of time or its needless presentation of cumulative evidence.
Application to Writing: Focus
How can we use these rules of legal relevance to improve our business reasoning and writing?
Focus. Judges and business leaders don’t pick up memos on a Saturday morning because they’re hoping the memos will make them laugh, cry, or feel inspired. Give decision-makers the information that is helpful and necessary to making wise decisions. Don’t waste your reader’s time discussing a company’s strengths and weaknesses if the company said they’re already past this and request from you an implementation plan. Sharing extra information—even if expertly researched and beautifully written—doesn’t make you look smart or thorough. It suggests that you can’t tell the difference between what’s important, and what’s not.
Your readers are busy. Don’t waste their time. Give them only the information that is helpful and necessary to make the decisions they need to make.