It's inevitable. During a medical malpractice trial in NY, the defense attorney will often object to different questions being asked. As annoying as that is, they actually have a legal right to do so. Likewise, I have an absolute right to object when the defense is asking questions that I feel are inappropriate.
When a defense attorney objects to a question I have asked and gives the judge an explanation that says the question assumes facts not in evidence, what exactly does that mean?
It means that contained within my question are certain facts that the attorney believes have not yet been put into evidence. There are a few ways to attack this type of objection.
The first way is to argue that those facts have been put into evidence, if in fact they have been. In that instance, the judge will tell the jury it is their recollection that controls and they must decide whether this question-and-answer should be given any credibility or weight.
Another way to argue this objection is to tell the court that some of these facts will be coming into evidence through other witnesses and testimony shortly and therefore we ask the court for a little leeway at this time.
I have the ability to ask hypothetical questions of a medical expert.
In that instance, I'm arguing that the facts I am asking the expert to assume as being true are in fact part of the record and has been put into evidence during the trial.
If the jury believes those facts to be true, then they can give the experts' answer whatever weight and credibility they feel necessary. If they believe we have not proven those facts contained within the question, then they are permitted to disregard the question and the answer given by the expert.
