A Strategy for Answering the Common Hypothetical Question during Expert Witness Testimony

A Strategy for Answering the Common Hypothetical Question during Expert Witness Testimony

Your work in the case dealt with real facts and real issues that led to your real opinions. An lawyer will occasionally ask how changing one or two relevant facts in the case would change your thinking in the case. His hypothetical question may not even be possible; in that case, state that it is not even a feasible alternative. But the hypothetical question can present a feasible alternative. If you have already considered this alternative, then you probably have an opinion about what the hypothetical changes might mean.

Let me give you an example of how to counter this hypothetical question technique:

Q: Mr. Expert, I'd like you to assume the following fact: no password is required to access Mr. Defendant's computer. I'd also like you to assume the following second fact: the defendant was home sick on the day the computer was used to break into my client's network. Isn't it possible that someone else could have used his computer on that day and that person could be responsible for the electronic break-in?

A: I will make those assumptions, but my own investigation of the defendant's whereabouts and the defendant's computer do not support those facts.

You should differentiate the facts in the case from the suggested facts of any hypothetical question. A goal of the opposing lawyer in offering a hypothetical alternative is to have you enunciate a new opinion that may be different from the one you presented in your report. You have to respond to hypothetical questions but you also have to clarify why any response to a hypothetical differs from your opinions in this case.

If the lawyer is sharp, then the hypothetical changes will be subtle enough to confuse jurors, and possibly even confuse you or make you unsure of your original results and opinions.

If the hypothetical question is complex or confusing, do not hesitate to restate it and ask if your restatement is accurate. Your restatement of course should be simple, reasonable, and if possible, make any absurdities in the hypothetical question apparent to the jury:

Q: If the defendant only lives 25 miles from his office isn't it possible that he had plenty of time to drive home, murder his wife, and return to his office before his normal lunch hour was over?

A: I want to be sure that I know your question. Are you asking me whether I believe that it was possible in one hour for the defendant to leave his desk at Noon on the seventh floor of his office building in downtown Los Angeles, walk to his car, drive through downtown LA traffic, cover 50 miles from his office to his home and back again, park his car, walk back to his office, and be back to his desk by 1pm? Is that your question?

Hypothetical questions can be subtle; subtlety on the attorney's part requires acuity on your part. Take your time in answering. Think through the proposed hypothetical question carefully. Identify what differences exist between the hypothetical and the facts in the case that you have analyzed. Identify the differences between the real and the hypothetical situation. Anticipate where the opposing attorney is going, and why the proposed hypothetical situation should not affect your opinions and opinions.

As long as you can identify and enunciate the differences between the real case and his hypothetical case, then you can simply point those differences out. You can explain why the real facts and the hypothetical proposal do not have the same basis. Be able to describe why the opinions one could draw in the hypothetical situation would naturally be different.

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