The Pizza

In a proceeding under the state Worker's Compensation Act, claimant George Smith alleges and introduces evidence that as he was operating a lathe his shirt sleeve caught in the machinery and his hand was severely injured. In defense, the employer's insurance carrier offers the testimony of a co-worker, White, that at the time of the accident Smith was eating a pizza and had looked away from his work momentarily to reach for a napkin. Smith's counsel objects to White's testimony. How should the judge rule? Why?

To be relevant, facts must be "of consequence to the determination of the action'' (i.e., "material''). Rule 401. One must know the legal issues in a case before one can say whether evidence about a fact is "of consequence to the action.'' Therefore, when answering any question about the materiality aspect of relevance, one must understand the elements of the cause of action and the defenses in the case. But sometimes it is not so easy to determine the issues in a case, even upon examination of the pleadings, substantive law, and other evidence presented. The law is constantly in flux. New theories of liability are continuously being created while familiar theories are modified, discarded, or disguised. In court, the judge may ask counsel for an explanation of what she is trying to prove with particular evidence. The message behind the judge's question is that relevance is a relational concept; in law, relevance has no abstract meaning, but rather is dependent on the nature of the case. The lawyer had better have a firm idea of the theory of her case when she responds.