Robert I. Feinberg Personal Injury Law Blog on Lawyers.com

For some time now, Massachusetts courts have not required that an expert render an opinion after being asked a hypothetical question.  The hypothetical question is still available to the attorney who is conducting a direct examination of his/her expert.  Practitioners should not lightly dismiss the hypothetical question; it is a wonderful opportunity to summarize the case.  When it is properly formulated, the hypothetical question will include all the essential elements of the case.  Using language along the lines of, “I would ask you to assume… and assuming…assuming further,” the practitioner has skillfully broken the case down into a series of clauses or foundational elements.  Consequently, if there is an objection, it can deftly be handled by eliminating or rephrasing the one section/element to which there has been an objection.  But, the most powerful tool of the hypothetical remains the attorney’s opportunity to summarize the case for the trier of fact.  It needn’t be used but its potential value is ignored at the practitioner’s peril.