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Asking Hypothetical Questions in Personal Injury Trials

Any personal injury trial attorney who goes to court regularly can tell you that attorneys, particularly newer attorneys, like to ask witnesses hypothetical questions. There is a valid reason. Juries like hypothetical questions. Hypothetical questions just seem to parse out the facts that are not important and focus only on critical facts to pose a cleaner question. But, they are often met with objection. Is that objection permissible? Is the question?

In fact, hypothetical questions are permissible. A judge has wide discretion in allowing hypothetical questions, but if the questions are allowed, they must be limited to questions based on evidence that either has been or will be introduced. To add facts which are not or will not be in evidence would be to skew and mislead both the expert and the jury. Now, there is no requirement that every fact of the case be presented to the expert in order for the expert to base his or her opinion. Part of the reason this is permissible is that, in the event one attorney omits important facts in his or her hypothetical on direct examination, opposing counsel has a clear opportunity to add the facts on cross-examination. However, if a material fact is omitted from the question, the judge may exclude question altogether.

Onef the most important things for the witness to keep in mind when answering hypothetical is that an answer should never be speculative or present conjecture. In plain terms, a witness should never guess, in any capacity whatsoever. If the witness feels he or she must guess to provide proper answer, then the witness's proper answer should probably be "I don't know."

When we get into the issue of which questions to ask and how to ask them, it means we are in the litigation process and probably a trial. That is the ultimate end on the preliminary level of our court system and likely the end of the case, absent an appeal. Most personal injury lawyers, at least in Massachusetts, would tell you that if you've gotten this far, something likely has gone horribly wrong with the case. It means that for whatever reason, the lawyers, who should know a great deal about Massachusetts personal injury law, have been unable to reach a compromise resolution on the case. Unfortunately, cases sometimes get to this point and when they do, the party with the injury does not want to start looking for new attorney was better skilled. Many attorneys practice in the area of personal injury in Boston, but also do not actually go to court to litigate these cases. You are best served when you find an attorney who litigates to handle your case from the very beginning. That heightens your chance that the lawyer representing you in this case will understand issues such as presenting hypothetical questions effectively.

Categories: Personal Injury, trial

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