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Hypothetical questions can help facilitate conversations on judgments about the perceived likelihood or potential consequences of an event or an action. They can also help reveal hidden or flawed assumptions. Supreme Court justices, for instance, often use hypothetical questions to test the outer boundaries of what the advocate is asking the court to declare and of what the court may have to decide.
In the June 20, 2024 Edition of The Legal Intelligencer, Edward T. Kang writes, “The Whole Truth: Addressing Hypothetical Questions to Lay and Expert Witnesses.”
Hypothetical questions can help facilitate conversations on judgments about the perceived likelihood or potential consequences of an event or an action. They can also help reveal hidden or flawed assumptions. Supreme Court justices, for instance, often use hypothetical questions to test the outer boundaries of what the advocate is asking the court to declare and of what the court may have to decide. Such questions are also permissible in trials and depositions. Lawyers often use hypothetical questions to help frame facts for the jury. This column aims to clarify the circumstances under which hypothetical questions are permissible for both lay and expert witnesses.
One such misconception is the common belief that a lay witness may never answer a hypothetical question. Indeed, courts have stated, in dicta, that “the ability to answer hypothetical questions is ‘the essential difference’ between expert and lay witnesses.” See United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005) (quoting Teen–Ed v. Kimball International, 620 F.2d 399 (3d Cir.1980)). Under the federal rule of evidence, witnesses may only testify to opinions or inferences “which are rationally based on the perception of the witness, and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The rule does not forbid a lay witness to answer a hypothetical question, however; it only requires that their testimony be based on personal perceptions or observations and that any part of a witness’s testimony that is based upon scientific, technical, or other specialized knowledge within the scope of Rule 702 be governed by the standards of Rule 702 and the corresponding disclosure requirements.
It is commonly believed that any hypothetical question asking the lay witness’ opinion on an event that has not yet occurred is not permitted at trial or at deposition. The examples below will illustrate why this is not the case and why the requirement that a lay witness’ testimony be based on personal perception, observations and knowledge points toward a better way of understanding how courts treat hypothetical questions.
The advisory committee notes to Rule 701 specifically addressed the circumstances under which business owners are permitted by most courts to testify at trial on damages as to the projected profits of the business, without requiring them to be qualified as an accountant, appraiser, or similar expert. See e.g., Lightning Lube v. Witco, 4 F.3d 1153 (3d Cir. 1993). The committee made clear that such opinion testimony by a lay witness is permissible because that testimony would be based on “the particularized knowledge that the witness had by virtue of his or her position in the business,” and not based on specialized knowledge within the scope of Rule 702. See also Teen-Ed (finding that the personal knowledge of the company’s balance sheets acquired by the witness as the company’s accountant clearly qualified him as a witness eligible under Rule 701 to testify to how, in his opinion, lost profits could be calculated, and to inferences that he could draw from his understanding of the company’s books).
Similarly, courts have found that hypothetical questions to lay witnesses are proper when they touch upon their personal knowledge and experience of institutional practices and policies. In United States v. Hill, 643 F.3d 807 (11th Cir. 2011), a case involving mortgage fraud and money laundering schemes, the district court allowed government attorneys to ask hypothetical questions to representatives of victim lending institutions, all of whom were involved in mortgage and loan approval for their respective companies, as to whether the disclosure of misrepresentations in some of the fraudulent loan applications would have had any effect on their decision to approve. The appellate court found that the district court did not abuse its discretion by permitting the witnesses who had personally dealt with the fraudulent loan transactions at issue to respond to the government’s questions about what would have happened if the facts had been different, reasoning that the lay witnesses who answered hypothetical questions based their testimony on their personal experiences as officers of financial institutions with knowledge of their companies’ policies and of the specific transactions at issue, not any specialized or technical knowledge, and thus there was little or no danger that lay witness testimony was used to evade the reliability requirements of Rule 702. See also United States v. Munoz–Franco, 487 F.3d 25 (1st Cir. 2007) (permitting a bank vice president to offer his opinion that the bank’s loan classifications would have been improper based on certain facts because his opinion was based on knowledge of the banks’ policies and practices that he acquired during his employment). Similarly, courts have found that objections and instructions not to answer at depositions were improper when made in response to a lay witness being asked hypothetical questions based on the witness’s business experience and institutional knowledge. See e.g., Freidman v. Fayenson, 983 N.Y.S.2d 203 (N.Y. Sup. 2013) (finding permissible hypothetical questions based on the business experience acquired by the deponent over that period, such as questions related to the practice of collecting rent from tenants of the deponent’s company’s property).
Much like not all hypothetical questions are improper when posed to lay witnesses, not all hypothetical questions are proper when posed to expert witnesses. For an expert witness to give opinion testimony in response to a hypothetical question, it is generally required that the hypothetical question must be based on facts supported by the evidence and should include only such facts, and those facts must be sufficient in scope for the witness to formulate a rational opinion. For example, in Boehm v. Eli Lilly & Co., 2012 WL 12848432 (E.D. Ark. Oct. 4, 2012), aff’d, 747 F.3d 501 (8th Cir. 2014), the court rejected an improper hypothetical question to an expert witness on a “failure-to-warn” claim. The hypothetical question asked the expert witness, a doctor, whether he would have prescribed a drug to the plaintiff patient for as long as he had, had he known about the hypothetical rate of a certain side effect of the drug, to which the doctor replied that he would not have. The court excluded the hypothetical risk figure and corresponding testimony from its summary judgment analysis, reasoning that nothing in the record supported the hypothetical number or had sufficient roots in scientific fact. See also Griffin v. Coffee County, 623 F. Supp. 3d 1365 (S.D. Ga. 2022) (expert opinion can be based upon a hypothetical question, as long as the hypothetical is supported by the facts of the case).
Hypothetical questions are permissible for lay witnesses when the testimony is based on the witnesses’ personal knowledge, perception, and experience. For experts, hypothetical questions are permissible when they are based on the facts supported by the evidence.
Too many lawyers instruct their nonexpert clients not to answer hypothetical questions at depositions—almost automatically without any analysis. They do so instinctively when they hear hypothetical questions or hypothetical “sounding” questions. Practitioners should keep in mind that we live in a world where hypothetical questions are routine and common (e.g., “what would you do …” or “what if we do …”). Practitioners should consider whether the hypothetical question is one that a lay witness could answer before objecting.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.
Reprinted with permission from the June 20, 2024 edition of “The Legal Intelligencer” © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.