There's an evolving standard of relevance. Relevance is always a challenge for those who litigate. The challenge lies not in the definition we have, but in its breadth, and perhaps ambiguity. To some extent, relevance may be in the eye of the beholder, much like beauty. And at the end of the day what's relevant to one may not be relevant to all.
In Florida, the admission of evidence is governed by two statutory standards, which are similar to the federal rules of evidence. The first analysis is whether the evidence is in fact relevant, meaning that it "tends to prove or disapprove of material fact." The second analysis allows the exclusion of evidence that is relevant, on the grounds that it may be cumulative, or more prejudicial than probative."
Years ago, I defended an employer against whom an injured worker had brought a claim. The injured worker had in fact brought two claims, against the same employer. However, the insurance carrier responsible was different for the two accident dates. Therefore, there were two defense counsels, and the employer's interests were well represented.
The accident involving my client had occurred later. By the time that accident entered litigation, there had already been a final hearing regarding issues surrounding the first date of the accident. After a visit to the client, and an examination of the scene, I had drafted an evaluation letter describing the perceptions of the case, and a plan for proceeding.
A vice President of the employer contacted me, to discuss my evaluation and the case in more depth. He wanted to discuss his perspectives on the evidence in the case and his testimony regarding the event. The vice president then explained his preference that I undertake the lead in representing the employer as regards both accidents. I suggested a conversation with co-counsel, and after that conversation, we agreed that I would take the lead.
Was it my striking good looks? Was it my incredible intellect? I wish one of these were the answer. It was because, in discussing the employer representative's proposed testimony, co-counsel and I had disagreed regarding relevance. Following the letter of the law, my co-counsel's interpretation was likely more valid. His desire was to present a short concise case, without any extraneous testimony. He had essentially told this company official that much of what interested him was not relevant.
Our mutual client, however, had a great deal that he wanted to say. So focused was he on testimony, that he had presented us with a typewritten list of thoughts and observations when we met. My gut reaction was that this testimony was very important to him, though perhaps only marginally relevant to the issues in the case.
Years later, as my former co-council and I discussed that case in retrospect, we both recognized that neither of us was either right or wrong in terms of our plan for presenting testimony. We agreed that the real issue was what made the employer comfortable, and satisfied.
As I prepared this post, and relived those memories, another situation also occurred to me. In one of my first solo depositions, I was called upon to inquire as to the accident in an intriguing case. It began with the construction of a bridge in Jacksonville, and that had been a major project involving multiple contractors and various vendors.
The bridge-building crew had habitually traveled from the shore to a series of barges on a "flatboat." On the accident date, this injured worker had been stepping from the barge to the flatboat when the waters' motion displaced the boat, the worker nonetheless stepped, and instead of landing on the boat had stepped into the St. Johns River. In a great many such instances, the worst damage might well have been a wet employee.
Unfortunately, this injured worker had struck the side of the flatboat on his way down and thus suffered physical injuries in the fall.
The following exchange occurred during that deposition
Q: So you stepped off the boat? (Notice I was asking leading questions?)
A: yes
Q: And your chest struck the boat on the way down?
A: yes
Q: And you fell into the river ?
A: yes
Q: Now, after you fell into the river,
A: (interrupting) "Man, you are not listening to me."
The injured worker then recounted that he had stepped off of the barge, missed the boat, struck his chest, and fell in the river. I thanked him and asked the next question,
Q: "so after you were in the river?"
A: (Interrupting) man you're not listening to me."
I made several similar attempts to bring this story to the point at which the worker was in the river (my plan was to elicit, step by step, what happened next, how he was helped, how he was removed from the water, etc.). But each time, this worker refused to allow me to move on to the point that he was "in the river." His attorney finally suggested that I ask him about the boat in which he rode. Curious, I acquiesced.
That question elicited a long and detailed story evidencing this workers' feelings about the boat, its crew, the complications of working around water, and more. This several minutes of testimony had nothing whatsoever to do with the accident, this worker's medical care, recovery, or residual disability. Frankly, it had nothing to do with the case and was irrelevant. However, much like the vice president described above, the worker had thoughts and feelings that he wanted to describe.
At the end of the day, it is important for individuals who have disputes to be afforded an opportunity to talk about what is important to them. That is not to say that the rules of evidence should be ignored, it is a suggestion that perhaps there are times when the rules of evidence regarding relevance might best be loosely interpreted when doing so causes no harm other than the expenditure of a few extra minutes. That is, even if it does not satisfy the "tends to prove or disapprove of material fact" test, it might still be worth listening to so long as it also does not violate the "more prejudicial than probative" prohibition.
This is a particularly pertinent reminder regarding mediation. In Florida workers' compensation, many petitions are filed seeking benefits, fewer proceed to mediation, fewer still to any hearing, and far, far fewer to an actual trial. Remembering that the parties may have thoughts they want to share at trial is a focus of this post. But, everyone should remember that many more cases are mediated than tried. Mediation may be the only Office of Judges of Compensation Claims event at which the air can be cleared, feelings and thoughts can be shared, and frustrations vented. Everyone involved should remember this and be mindful that such unburdening may well be productive or even cathartic.
For a trial, lawyers must remember relevance. It is important not to allow the critical facts to become lost in a sea of distraction. But, it is as important to remember that this deposition, mediation, or trial may be the only opportunity a particular person gets to tell their story, vent their feelings, and unload their soul. We should all be conscious that people may benefit from telling their stories. We must remain patient with those around us and always remember that a little courtesy and empathy go a long way.
