The answer is "Yes," he can.

The defense lawyer can 'choose' not to make opening arguments at the beginning of your trial. Instead, he can wait till after you finish putting on all your evidence and testimony. Then, he can make his opening arguments. Keep reading to learn why.

You've sued your doctor. For medical malpractice. For injuries you suffered because of his carelessness. Your case is pending here in New York. 

The doctor you sued says your case is baloney. He says you're faking your injuries and that your case doesn't have any merit. He also says he will never negotiate with you and will never settle your case.

This infuriates you. This makes you mad. This makes you angry. You know in your heart of hearts that your doctor didn't intend to harm you. Instead, he was careless. It was his wrongdoing that caused you harm. Permanent harm.

That means that your case is going to trial. That means that a jury of six people from the community will decide whether you are more likely right than wrong. That means it will take you about two to three years to get an answer from a jury. That's how long it takes to get to trial in a medical malpractice case here in New York.

In the weeks and months leading up to your trial, your attorney is preparing your case. There's a lot that goes into preparing for your trial. In fact, the best trial lawyers in NY believe that preparation is the key to winning any case.


At the beginning of a medical malpractice trial, the attorney for the injured patient makes opening arguments first. We must explain to the jury why we are here. We must answer these questions during our opening arguments...

What are the facts that led this patient to court? What did this doctor do wrong? What should he have done? What injuries does this patient have now because of the doctor's carelessness? What can and can't she do now? What experts will be testifying to support our claim? What will they say when they take the witness stand? What weaknesses are there in your case?

An opening argument must be crafted to include all the elements necessary to make out a prima facie case. That simply means that I must show there is wrongdoing, I must show that the wrongdoing caused injury and I must show the injury is significant or permanent. I need to explain each of these things during opening arguments.

If I fail to tell the jury about each of these things, the defense lawyer will stand up after I make opening arguments and demand that the judge dismiss our case for 'failing to make out a prima facie case'. That means that there is the potential your case will be dismissed before the defense lawyer ever stands to make HIS opening arguments.


That can happen, though it is rare.

In my opening argument I want to tell the jury a story. A story of how doctors have certain rules, regulations and standards of care when treating patients. I need to explain that in your case, your doctor violated the basic standards of care. I need to explain, step by step, what your doctor did wrong. I need to explain what he should have done. I then need to explain how those departures from good care resulted in your injuries.

From a legal standpoint, explaining what your doctor did wrong and what he should have done instead helps explain liability. That's the first component of our opening argument. I then have to establish causation or what we call proximate cause. That's the link, the connection, between what was done wrong and your injury.

Then, I need to focus on damages. That's the different types of injuries and harm you suffered because of your doctor violating the standard of care.

After I am done making my opening, the Judge then turns to the defense lawyer and says "Defense counsel, you may make your opening remarks."

In this example, the defense lawyer stands up and says "Your Honor, at this time I choose NOT to make an opening argument but instead reserve my right to do so at the end of plaintiff's case." He then sits down.

The Judge is shocked. I am shocked. But the Judge recognizes he has the right to do this.

Why? This is a strategy that some defense lawyers use. It's rarely done, but it is available for the right case. Here's why a defense lawyer might choose to use this strategy.


You see, as the patient bringing a lawsuit against your doctor, you have to show that you are more likely right than wrong that what you are claiming is true. In law we call that 'the burden of proof'. You're accusing your doctor of malpractice. You have the obligation to show a jury that you are right.

Show your proof. Show your evidence. Show your testimony. Let the jury decide if you are more likely right than wrong. If you are, you win. If you're not, you lose. The defense doesn't have to put on any evidence. They don't have to put on any testimony. They don't have to have any medical experts show up in court to testify. They could sit back and simply cross-examine each witness you put on. The defense could try and show that you are NOT more likely right than wrong without offering any evidence of their own.

This is a very dangerous strategy. The jury really gets only one side of the events when this strategy is used. The defense lawyer is relying on his cross examination techniques to try and destroy each witness' credibility. This again is a very risky strategy. Very rarely used.

Some defense attorneys may try to modify this strategy. A defense lawyer may feel that you have a weak case. He may feel that your attorney may not be up to speed and may not make out the elements needed to proceed forward. He may think your trial lawyer is not very good and there's a possibility he can get your case dismissed after opening argument.

In that case, he'll tell the Judge he wants to hold off with his own opening arguments until after your lawyer has put on all the evidence and testimony he needs to PROVE your case. What he's really hoping is that your lawyer screws up opening arguments. That's his first shot at getting your case dismissed. 

The defense lawyer will immediately get up from his chair and say "Judge, I move to dismiss the patient's case as her lawyer has failed to establish the elements needed to prove a case in his opening arugments." The Judge will likely deny his request. (As a side note, judges usually prefer to have these cases decided on the merits rather than on a legal technicality which might be reversed on appeal.)

Assuming the Judge denies the defense lawyer's request to immediately dismiss your case after opening argument, he now expects to cross-examine each witness your lawyer puts on to support your claim. He's hoping he can destroy their credibility. Then, after your lawyer is done with all the evidence and all his witnesses, he'll tell the Judge

"Your Honor, the Plaintiff rests."

Now it's showtime. The defense lawyer stands and addresses the Judge.

"Your Honor, the defense moves to dismiss the patient's case for failing to make out a prima facie case as a matter of law!" the defense attorney yells out with confidence. The Judge hesitates. He's weighing what to do. He's deciding whether he can or should do this. More often than not, the Judge will deny this request. He will likely want the jury to make the decision about whether you are entitled to a verdict in your favor.

If the judge thinks the facts are in dispute here, he will say there are questions of fact that must be decided by the jury. If the facts are not in dispute and the Judge must make a legal ruling, then it's possible he'll make an immediate decision about whether to dismiss your case or allow the defense to proceed with any proof they may have.

If the judge decides to deny the defense lawyer's request to throw out your case, the defense lawyer will likely make his opening arguments at that time. "Your Honor, in light of your decision to submit this case to the jury, I ask to make my opening arguments at this time."

"Granted," says the Judge. "Proceed with your opening argument counselor."

At this point, the defense lawyer will now make his opening arugments. He has the benefit of having heard your lawyers' argument and has cross-examined each of your witnesses. He can explain "Ladies and Gentlemen, we will show that Dr. Jones did nothing wrong here. He treated the patient appropriately. Nothing he did or didn't do caused her injuries. Besides, her injuries really are not as bad as she claims."

"You've heard from Dr. Gold. We dispute his testimony and we will be bringing in a world class surgeon to show you why Dr. Gold is wrong. You've heard from Dr. James. We think his testimony was full of baloney. We'll be bringing in a board certified gynecologist to show you how wrong Dr. James really is. Then, when we are done with our witnesses and our evidence you'll see that Dr. Jones did nothing wrong and I hope your verdict will reflect that reality."

Let's get back to the headline of this article. Can the defense "CHOOSE" to hold off with his opening argument during a trial? The answer is yes, he can. If he chooses to use that strategy, that simply defers when he'll make his oepning remarks. I will tell you that I have been in practice for almost 29 years in New York. I have NEVER seen a defense lawyer not make ANY opening argument at some point during trial. That would be extremely risky.

To learn why the best trial lawyers NEVER read their opening arguments, I invite you to watch the quick video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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