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You Sued Your Doctor. You Know Your Case Better than ANYONE. You Want to Make Your Own Opening Arguments at Trial. Can You Do That in New York?

Imagine this scenario...

You've sued your doctor.

For medical malpractice.

You say he was careless.

You claim his carelessness caused you injury.

You argue your injury is permanent and disabling.

Your doctor says your claim is bull.

He says he did nothing wrong.

You're blaming him for a complication that he had no control over.

He also says you didn't listen to him and that's why you have your injury.

Besides, he says your injury really isn't that bad.

You hired the best attorney you could find.

He seemed good.

He had great reviews on Google and Yelp.

He seemed intelligent.

But he just doesn't GET YOU.

He doesn't really understand you.

He seems to be on another planet when you tell him details of how your injury affects you on a daily basis.

You are frustrated.

You don't think he's paying enough attention to you.

You don't think he grasps the nuances of your case.

You've told him this before.

Then HE gets frustrated with YOU.

This goes in circles.

The defense has refused to negotiate.

They have a 'no pay' position on your case.

That means you're going to trial.

That means a jury will render a verdict.

That means a jury will decide if you are more likely right than wrong.

You've heard that a litigant can represent themself.

Not just in a criminal case but in a case like this, a civil lawsuit seeking money as a way to compensate you for your injuries.

You start exploring the intriguing possibility of you making your own opening argument.

You know your case better than your lawyer.

You know the details of your case better than anyone.

You don't want to handle the entire case on your own.

Just opening arguments.

You've been making these arguments for a few years now.

This has been playing in your head every time you think about what happened to you.

You'd love nothing more than to show a jury how well you know your case.

You'd love to show off to the jury that you have a total command of what your doctor did wrong.

You'd love to let the jury know that there's only one conclusion they can reach after looking at the facts and the evidence in this case.

You bring up this possibiity with your lawyer.

He's taken aback.

He's never had a client ask to do their own opening arguments.

Never.

It never even crossed his mind that a client who hired him would ask to do this.

But you ask "Can I do it?"

Technically the answer is "Yes. You can."

You can represent yourself.

You can make your own opening argument.

But the better question should be, "Should you?"

Sure you CAN do it.

But that doesn't mean you SHOULD do it.

Just because you have a driver's license, doesn't mean you should jump into a Formula 1 race car.

Just because you have the ability to do something doesn't mean you SHOULD do it.

There's a reason an attorney goes to law school for three years.

To learn the law.

There's a reason an attorney is required to take and pass the bar exam after law school.

To see if he has the proficiency and knowledge needed to practice law.

There's a reason an attorney needs to gain experience before becoming an expert in a particular field of law.

The more experience you have, the more knowledge you have to help people with similar problems.

In law, experience is vital.

Let me state it a different way...

A young doctor who finishes medical school and his residency training now becomes eligible to take his board certification examinations. That's the highest level certification a doctor can achieve in his specialty.

Just because a young doctor has passed his board certification exam does not make him the best doctor in the world.

If you need surgery, you're likely to look for a board certified surgeon who has been doing that surgery for twenty years.

Same thing in law.

There's a big difference between an attorney just out of law school who just passed the bar trying a case compared to a veteran trial lawyer who has been trying cases successfully for twenty years.

What's the point?

The point is that although you many know every single little fact about your case, there's a good chance you don't know the law.

There's a good chance that even if you did know some of the law, you'd be lacking all that you need to know.

If you had the time, could you learn all that you need to know?

Sure you could.

You could go to law school for three years.

You could tkae and pass the bar exam in New York.

You could then go and practice law and try medical malpractice cases for twenty years.

Then you could make your opening argument with sufficient expertise that your attorney would have no problem saying 'Yes'.

But you don't want to go through all that.

Yes, I understand that.

You don't want to endure all the years of training and mistakes to reach that point.

I understand that too.

So, let's get back to your original question.

You want to make opening arguments in your case against your doctor.

Well, you can do it.

You might learn how to do it effectively.

You might even do well.

Then again, you might not.

What will you do if the defene attorney objects to something you say during your opening?

Will you argue with him?

Will you know how to address that legal objection?

There are hundreds of objections an attorney can make.

Do you know how to address each one?

What if your opening argument discusses what a witness has said in the past?

The defense attorney jumps up and yells "Objection Judge! That's hearsay and totally improper for opening argument."

What if you decide to talk about something the trial judge has already ruled was improper to brging up at trial?

What if you only address two out of the three elements needed to show you have a valid case?

If you fail to focus on liability, causation and damages, there's a very good chance the defense lawyer will jump up after you've finished your opening argument and ask the judge to dismiss your case befor he even gives his opening argument.

If you have failed to make out a prima facie case, showing that you have all three elements needed to prove your case, there's a possibility the trial judge will dismiss your case before a single witness is called.

Did you develop a theme for your opening?

Have you coordinated that theme with your attorneyd?

This theme should run throughout everything that happens in your trial.

Did your doctor violate the basic standard of care?

Did he break a rule?

Did he not follow written guidelines?

What's YOUR theme?

It's not simply showing he didn't do what he should have done.

You need to do more.

You need to show more.

I know, you think that by being creative, this will get the jury to realize that you're entitled to a verdict in your favor.

Maybe.

Maybe not.

Are you aware of the procedural missteps that can occur during opening argument?

Then there's the matter of how you present your arguement.

Will you use notes?

Will you use an outline?

Will you use demonstrative evidence?

Will you tell the jury which witness will be coming in to testify?

Will you disclose all your secrets?

What if there's some damaging information about you and your case that you think would hurt your chances?

Will you tell the jury about it during your opening?

There's a good chance your attorney would.

Do you know why?

Do you know what will happen if you don't disclose those bad things about you BEFORE the defense lawyer does it?

Let's say you were convicted of robbing a bank twenty years ago.

You went to jail for ten years.

You didn't tell the defense lawyer about your criminal conviction when he asked you during your pretrial question and answer session known as a deposition.

You lied about it.

You said you were never convicted of anything.

Big mistake.

He's going to make you out to be a liar now.

Do you disclose the fact that you lied during your deposition?

Do you disclose the fact that you are a convicted felon?

Do you tell the jury you did hard time in prison?

Want to know what happens if you don't?

The defense attorney will get to show that you are a liar.

That you are not to be believed.

Under any circumstance.

That means your credibility is shot.

If you cannot be believed, how can you expect the jury to give you a verdict in your favor?

Talking about your presentation, how long will your opening argument be?

You think you need three hours to tell the jury about every single detail.

You think every detail is important for them to know.

Guess what?

The judge will not allow you three hours to make your opening argument.

The jury will likely be asleep if you intend on making a three hour opening argument.

There much more to know about opening argument.

Before jumping into the idea of making your own opening arguments, think whether you should.

To learn what happens if an attorney reads his opening argument, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer