Advanced Objection Techniques: Arguing Weight versus Admissibility, Part II

In Part I of this argument, we assumed you’re the one making the “weight versus admissibility” argument. What happens when you’re on the receiving end of it? Well, you’re in a bit of a tough spot, because the most straightforward way to respond is to argue that their argument doesn’t even meet relevance’s low standard, and you’re going to have a hard time doing that unless their argument is pretty ridiculous. It’s often worth a shot, though, and if your team subscribes to the “never give up, never surrender” school of thought on objections, it may be the best line of attack you have. Your other option is to point other ways they could have proved the same point, or ways they have offered evidence on that point, without invoking the relevance concern. The line of thought you’re essentially selling the judge on is that opposing counsel has a hassle-free way of making their point and we shouldn’t bother with this dubiously relevant content at all. You’re invoking something of the spirit of the ‘cumulative’ and ‘waste of time’ objections (don’t switch to outright using those objections, though) to persuade the judge this line of argument is better kept from the jury. This has often proven effective and is a stronger line of attack than arguing that opposing counsel fails the relevance standard. There is one pitfall to this approach, though: in a certain sense it’s not supported by the Rules of Evidence. Nowhere is it writ that using one line of evidence to support a point rules out using other lines of evidence to support it- the only barrier opposing counsel’s arguments have to surmount to pass a relevance objection is the relevance rule, not your assertions about how they should have avoided a relevance issue altogether (that, by the way, is the line of argument you should use if you’re ever on the receiving end of this particular argument). The only reason it’s not totally illegitimate is that it does appeal to a real sense in which the application of the Rules of Evidence is a balancing test, weighing the need to keep the record clean of objectionable evidence against the need to allow both parties a fair shot at presenting their case. The proponent of this argument is telling the judge there’s a way to do both in one decision.