News
Litigation
Jul. 23, 2002
Don't Torment Expert, Ask Hypotheticals
Dicta Column - By David H. Brickner - Counsel will customarily base direct examination of an expert on hundreds of pages of reports and depositions and other writings that they ask the expert to read and digest before testifying. I guess that's OK, but suppose your expert, who otherwise knows what he is talking about, hasn't read or reread or adequately remembered all the papers upon which your direct examination is based?
Dicta Column
By David H. Brickner
Counsel will customarily base direct examination of an expert on hundreds of pages of reports and depositions and other writings that they ask the expert to read and digest before testifying. I guess that's OK, but suppose your expert, who otherwise knows what he is talking about, hasn't read or reread or adequately remembered all the papers upon which your direct examination is based? Believe me, it's painful to watch a flustered attorney trying to frantically wade through pages of material, trying to get the witness on track as to what some other expert said or recall some nuance buried in a report.
What to do? I suggest this practical solution, used over the ages, which will enable you to easily extract everything you want from your expert: Just ask a hypothetical question which asks the witness to assume certain facts. To ask such a question, simply lay out every fact supporting your case that relates to the witness's opinion and, with the assumption those facts are true, ask what opinion the witness gives.
Consider the following type of hypothetical question: "Assuming the patient was admitted to the emergency room at 12:05 a.m. and assuming the patient's temperature had been 105 degrees for 12 hours and assuming further the patient complained of severe neck pain, do you have an opinion of a working diagnosis?" This type of question is more like to get a clear answer, such as "Yes, meningitis."
Obviously, the hypothetical question may require many assumptions, which is OK if they are laid out in a clear and orderly way. You definitely know the vital elements of your case or defense, and, therefore, know what to ask the expert to assume, if you are prepared to prove each assumed fact.
Now, proceed smoothly with your expert.
David H. Brickner is an Orange County Superior Court judge.
By David H. Brickner
Counsel will customarily base direct examination of an expert on hundreds of pages of reports and depositions and other writings that they ask the expert to read and digest before testifying. I guess that's OK, but suppose your expert, who otherwise knows what he is talking about, hasn't read or reread or adequately remembered all the papers upon which your direct examination is based? Believe me, it's painful to watch a flustered attorney trying to frantically wade through pages of material, trying to get the witness on track as to what some other expert said or recall some nuance buried in a report.
What to do? I suggest this practical solution, used over the ages, which will enable you to easily extract everything you want from your expert: Just ask a hypothetical question which asks the witness to assume certain facts. To ask such a question, simply lay out every fact supporting your case that relates to the witness's opinion and, with the assumption those facts are true, ask what opinion the witness gives.
Consider the following type of hypothetical question: "Assuming the patient was admitted to the emergency room at 12:05 a.m. and assuming the patient's temperature had been 105 degrees for 12 hours and assuming further the patient complained of severe neck pain, do you have an opinion of a working diagnosis?" This type of question is more like to get a clear answer, such as "Yes, meningitis."
Obviously, the hypothetical question may require many assumptions, which is OK if they are laid out in a clear and orderly way. You definitely know the vital elements of your case or defense, and, therefore, know what to ask the expert to assume, if you are prepared to prove each assumed fact.
Now, proceed smoothly with your expert.
David H. Brickner is an Orange County Superior Court judge.
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