Hypothetical Question

Example

During a trial in which the defendant, an attorney, is being sued for legal malpractice, the plaintiff asks an expert on legal practice to testify as an expert witness. The plaintiff alleges that the defendant’s failure to file a complaint in time to meet a statutory deadline resulted in the dismissal of their case. Furthermore, the plaintiff claims that had the defendant filed the complaint in time, they would likely have won the case had it gone to trial. The plaintiff’s attorney asks the expert witness if the plaintiff would’ve had a strong enough case to prevail at trial, had the defendant filed the complaint in time. This is an example of a hypothetical question, as it is based on assumed facts that haven’t been proven in court.

Case Examples

• Definition: Courts have defined hypothetical questions as being “designed to elicit opinions, not first-hand, percipient facts.” Est. of McNamara v. Navar, No. 2:19-CV-109, 2020 WL 2214569, at *2 (N.D. Ind. May 7, 2020).
• Criminal trials: Courts have found that “it is well established that experts may offer opinions based on hypothetical questions proposed by the attorneys questioning them.” United States v. Offill, 666 F.3d 168, 177 (4th Cir. 2011). In Offill, the Defendant, Offill, was convicted of securities fraud. Id. The Defendant argued that the court allowed hypothetical questions based on the Defendant’s conduct. Id. The court disagreed and found that the expert witness was allowed to answer hypothetical questions based on the Defendant’s conduct but not the Defendant’s intent. Id.
• Social Security disability benefits: Hypothetical questions are also allowed when determining whether an applicant qualifies for Social Security disability benefits. See Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002). However, the hypothetical questions must include the applicant’s limitations and abilities. Id.