The short answer is yes, he can.
He can WANT your case thrown out all he wants.
He can WISH that the judge throws your case out immediately.

But all that wanting and wishing doesn't happen unless he actually ASKS for it to happen.

When can he ASK the judge to throw out your case?
Let me count the ways...
He can do it after jury selection is over.

He can do it before the judge welcomes the jury into the courtroom.
He can do it after the judge has given the jury preliminary instructions on what to expect during your trial.
It's not typically done at that time, but he could if he felt the need.

He can do it after your attorney has made his opening arguments.
That's when it typically happens.
He could do it before he makes his own opening arguments, although it doesn't really happen that way.

He could do it just as your attorney calls his first witness to the stand to testify.
Again, he could do it that way, but it's unlikely he'll wait till that point to do it.
He could do it after all your witnesses have finished testifying and your attorney says "The Plaintiff rests!"

You see, the opposing lawyer will take every opportunity to short-circuit your case and try to get it thrown out before you ever get to a jury verdict. It's an opportunity for the defense to get multiple shots at the apple to see if one of them will work and get your case dismissed on legal grounds.

If the judge decides that there are competing facts, he will then allow your case to proceed to verdict and have the jury decide whether you are slightly more likely right than wrong that what you are claiming is true. If however, there are legal issues to be decided, such as whether you started your lawsuit in a timely fashion and the judge decides you did not, then he will likely dismiss your case and you never get the jury to decide your case.

These repeated attempts by the opposing lawyer to get your case dismissed has a legal name for it.
We call it making a motion for summary judgment.
Before the trial ever takes place, if the opposing lawyer wants the judge to consider his request to dismiss your case, he must do it in writing. That's known as making a motion for summary judgment.

A motion is nothing more than a formal written request for the judge to take action.
Summary judgment refers to the request to throw your case out without the need to go through a trial.
The defense attorney must present compelling legal arguments in each case why the judge should dismiss your lawsuit.

Your attorney will then have an opportunity to respond in writing.
The judge will then take the time to review the competing papers, do his legal research and come to a reasoned decision.
When this request is made at trial, there's no time to prepare written papers.

Instead, this request is made verbally.
Yes, there's a court stenographer recording everything that is said in the courtroom, but the attorney making this request must be able to express and verbalize exactly why he believes there are no factual issues to be decided, but rather only legal issues. The judge will then give your attorney an opportunity to verbally respond to the defense's request to dismiss your case.

When an attorney asks the judge to dismiss your case right after opening arguments, there is usually one important legal reason he's doing that. He's likely going to argue that your attorney has failed to tell the jury about all the necessary parts of your claim.

In law we have a phrase for that.
"Judge, I ask you to dismiss this case for failure to make out a prima facie case!" the defense attorney blurts out in a fit of energy.
Now, what does that mean exactly?

To 'make out' a prima facie case means that I have shown the necessary elements to show the jury that we have a valid case.
Well what are the necessary elements to show we have a valid case?

I have to show liability, causation and damages.
Figures an attorney would explain with more legal nonsense.
Ok, here's what we have to do...

During opening arguments I need to explain to the jury why we're here.
I need to explain what we believe your doctor did wrong.
How did he violate the basic standards of medical care.

I need to teach the jury that because your doctor was careless, his carelessness caused you harm and injury.
I also need to tell them how your injuries are permanent and will affect you for the rest of your life.
Doing this establishes a prima facie case.

That means when and if the defense lawyer tries to get your case thrown out after our opening arguments claiming we have failed to make out a prima facie case, I can now reiterate to the judge that the defense's request is nonsense as I detailed explicitly how your doctor was negligent, how his negligence was a cause of your injury and how your injuries are significant and/or permanent.

To learn more about opening arguments, I invite you to watch the video series below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer