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Why do we use hypothetical questions at deposition and trial?

Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer

Hypothetical questions are great way to ask a doctor or witness to assume certain facts as being true. We do that to get the witness to agree with our claims that if certain facts were true then he would have to agree with those conclusions.

In New York, we are permitted to ask doctors who are being sued, known as defendants, as well as medical experts, hypothetical questions.

We are arguing to the jury that our set of facts are true. The defense obviously has her own interpretation of what occurred and they have an opportunity to ask hypothetical questions as well.

“Doctor, I want you to assume the following set of facts to be true..."

I then would recite the facts that are favorable to us.

“Assuming those facts to be true, would you agree that failing to perform this procedure would be a departure from good and accepted medical care?”

Obviously, the defense will ask a hypothetical question that is contrary to our set of facts because the witness to agree that if there sets of facts are true their conclusion would be favorable to them.

Then it will come down to the jury determining which expert was more credible and who they believed.

Watch the video to learn more...