Why do lawyers, above most other professions, utilize the tool of hypotheticals? What is their evidentiary value, and in what way does it help to advance the cause of one’s case?
Say, for instance, you need an architect or an engineer (yes, yes, the humor here is that in speaking about hypotheticals, we are preparing to present one), would you be at all impressed if, after describing with precision the type of product you desire to have built, or in requesting a blueprint of a model house you are interested in, the architect or the engineer presents you with a hypothetical?
What, first of all, is a ‘hypothetical’? It is, first and foremost, a proposition of non-existence, but with components of reality that may or may not have occurred or existed except in partial or disparate forms, delineated in an attempt to make or prove a point. It is the tool of the attorney, just as the pencil and the blueprint are the resources of the architect, and the mathematical calculations the reliance of the engineer. Often, it is used by means of analogical content to prove a point and to enhance the evidence gathered.
Take, for example, the lawyer who defended a bank robber. He meets his client for the first time, and the criminal defense lawyer puts up a hand in order to stop his client from speaking, and says the following: “Now, take the following hypothetical, Mr. Dillinger: A man walks into a bank and hands a note to the teller that says, ‘Give me everything in your drawers.’ Now, that man was subsequently arrested. No cash was ever exchanged; no weapon was ever found. The question, then, is: What was meant by the words? Only you know. If, by way of a hypothetical, the man meant to obtain the contents of the teller’s drawer, it might mean 10 years in prison. If, on the other hand, the note meant to be a lewd proposal about the teller’s anatomy beneath her undergarments, it would likely be a misdemeanor offense. Now, Mr. Dillinger, which is it?”
Now, aside from some who would view such a presentation as somewhat unethical for “suggesting”, on the part of the lawyer, which intended “meaning” the defendant possessed at the time the note was passed, such a hypothetical is intended to denote the importance of hypotheticals within the purview of “the law”. Hypotheticals allow for individuals to see the differences in paradigms or examples; it allows for options by way of analogy.
For Federal employees and U.S. Postal workers who suffer from a medical condition where the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, hypotheticals have quite likely become like unicorns and gnomes: no longer a figment of one’s imagination, but a reality that must be faced within a surreal universe of a Federal Agency or the Postal Service that fails to possess the humanity necessary in dealing with a person with failing health.
Words of platitudes are often spoken; and, perhaps, here and there, you come across someone at your agency that actually cares. But for the most part, such “caring” amounts to no more of a reality than mere hypotheticals; and when that realization comes about that the clash between hypotheticals and reality must be confronted, it is time to get down to the “nuts and bolts” and prepare, formulate and file a Federal Disability Retirement application with the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset.
And, as an aside, you may be asking, What was Mr. Dillinger’s response to the lawyer’s hypothetical? He punched the lawyer in the mouth, stood up and said, “Jeez, I ain’t no pervert! Of course I wanted the money!”
Robert R. McGill, Esquire