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New York Law Journal
October 31, 2006, Tuesday
SECTION: Pg. 5, (col. 1) Vol. 236
LENGTH: 2630 words
HEADLINE: TRIAL ADVOCACY; The Use of Hypothetical Questions as Weapons at Trial
BYLINE: Ben B. Rubinowitz and Evan Torgan
BODY:
Hypothetical questions are a vital tool for a trial lawyer. Without them, we would have more difficulty proving cases, more difficulty disproving opposing theories, and more difficulty convincing juries of the righteousness of our cause. This is true in spite of the adoption of CPLR 4515, which removed the requirement of posing hypothetical questions to obtain expert opinion at trial. The Legislature evidently felt that the use of hypothetical questions was unduly time-consuming, one-sided, and added very little to trial practice. Famous legals scholars even said that such questions were “misused by the clumsy and abused by the clever.”
1 Even the Federal Rules of Evidence did away with the requirement for hypothetical questions.
Streamlined Hypothetical Questions Nothing in the law, however, prohibits the use of streamlined hypothetical questions and the tactical advantage in using this questioning technique is one that should not be overlooked. The premise behind all trial lawyers’ strategic decisions at trial serve one uniform purpose: to convince the trier of fact that his position is correct. This is not an easy goal to achieve, particularly in personal injury cases where expert opinion is a mandatory part of the proof: to show that an injury is permanent and painful; that a doctor departed from accepted standards of medical practice; that the negligence in question caused a specific injury; that an injured victim can no longer work; or that scientific or technical expertise, such as that possessed by an accident reconstructionist, reveals which party was at fault. In truth, all of these opinions can be made clear by the effective use of hypothetical questions. Consider a typical case involving an automobile accident where a 19-year-old plaintiff sustained a herniated lumbar disc in a rear-end accident. The trial lawyer could simply go through a direct examination of the treating physician, having her define medical terms, discussing the history given to her by the patient, and her findings. He can then ask the doctor her opinions as to injury, causation and future prognosis without using a hypothetical question. It is far more persuasive and far more dramatic, however, to ask a hypothetical question that incorporates the relevant facts that you have already proved through other witnesses and the expert physician herself. Such an approach strengthens the effect of the expert’s testimony by focusing the jury on the facts upon which it is based:
Proving Causation The hypothetical question is particularly important in the cases involving difficulty in proving causation. Take, for example, the same automobile accident, but this time with a 55-year-old plaintiff with a prior arthritic condition in the lower back. The use of a hypothetical question can crystalize your proof: Do not be concerned with streamlining your direct of the expert witness. The better method is to take a methodical approach to this problem, set forth objection-proof hypothetical questions, and enhance the opinion of your expert by using factual data already brought out on your direct case.
Vocational Experts Vocational experts are very important in bridging the gap between your expert physician and economist when it comes to proving lost earnings. This is particularly true where your physician gives an opinion that your client can no longer work as a construction worker, but the defense experts say that he could do other more sedentary work. Pointed mini-hypotheticals based on facts in evidence can be very persuasive in this area as well.
Liability The use of hypothetical questions is equally as important in establishing liability. In any malpractice action, expert testimony is required to prove medical negligence. Here, hypothetical questions are the best way to prove liability. Imagine a scenario where the plaintiff’s lawyer attempts to establish negligence in the absence of a hypothetical question:
Departures and Causation Do not forget, in a medical malpractice case, to immediately connect the departures with causation of injury. Hypothetical questions are also helpful when questioning safety engineers. In many automobile accident cases the defense asserts a seatbelt defense. Take for example a case involving a fractured pelvis where the driver was injured in an intersection collision with the impact on his driver side door, and the plaintiff admits he did not have his seatbelt connected. It is essential not to exaggerate or modify prior testimony in any way so as not to undermine your credibility while phrasing the hypothetical. Only those facts in evidence (or those taken subject to connection of proof to be adduced at a later point in time), may be included in the question. The manner, method and speed of delivery should be calculated to be of interest to the jurors and hold their attention throughout. Changes in the tone of your voice and position should be made to enhance your presentation.
Opposing Expert The use of a hypothetical question on cross-examination of an opposing expert is a vital technique to undermine and limit his opinions. This will be the subject of an upcoming article. As demonstrated above, the hypothetical on direct provides context, support and resonance to your expert’s opinion. Its value should not be overlooked when seeking to achieve a successful result.
Ben B. Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. He also is an adjunct professor of law, teaching trial practice at Hofstra and Cardozo schools of law.
Evan Torgan is a member of Torgan & Cooper. He is an adjunct professor of law, teaching trial practice at Benjamin N. Cardozo School of Law.
Richard Steigman, a partner at Gair, Gair, assisted in the preparation of this article.
Endnotes: 1. 2 Wigmore On Evidence ?686 (Chadbourne rev. 1979).