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Have You Ever Heard of an Attorney Making an Off-the-Cuff Opening Argument in a Medical Malpractice Case?

I've been in practice in New York for almost 30 years now and have NEVER heard of an attorney making an off-the-cuff opening argument. Want to know why?

Simple.
Opening arguments are the very first time we get to talk to the jury about the details of your case.
It's the very first time the jury gets to hear the exact claims you are making against your doctor.

During jury selection, the jury knows none of this.
The jury only knows that this is a case involving claims of medical negligence.
Medical carelessness.

We are not allowed to tell them the facts of this case.
We are not allowed to tell the law in your case.
We are not permitted to make arguments about what our experts will say during trial.

When we start your trial and give opening arguments this is the very first time the jury is hearing the details of your specific case.

But let's get back to the title of this article.

Do attorneys ever make off-the-cuff opening arguments?
No, they don't.
Why not?

Because an attorney will know for weeks or months that your case is coming up for trial.
That gives your lawyer an opportunity to prepare your case for trial.
To prepare witnesses.

To prepare experts.
To prepare exhibits.
To prepare legal briefs for the judge.

To prepare subpoenas to compel certain witnesses to appear in court.
To compel a hospital or a doctor's office to send your medical records into court.
To prepare for cross-examination and direct examination.

Importantly, to prepare opening arguments and closing arguments.
The best trial attorneys prepare extensively for trial.
They practice their opening arguments over and over again.

They refine their arguments.
They constantly improve it.
They practice it so they don't need notes or an outline.

The best trial attorneys simply appear to have a great conversation with the jury during opening arguments.

The only way to make it appear effortless and casual is to practice it.
Over and over again.
Some lawyers even hire focus groups to listen to opening arguments and get feedback about it.

This allows them to refine their presentation to the point where they think it works well.

I have never seen a situation where an attorney is forced to try a case and make opening arguments without having been given any notice that the case is on for trial. If they were, it might be grounds to set aside the verdict since that might constitute an abuse of judicial discretion.

If an attorney were to try and make an off-the-cuff opening argument, it would be rough.
It would be unpolished.
It would likely miss key information that the jury will need to know.

Remember, when making opening arguments, we have to lay out why we believe your doctor was careless and why his wrongdoing caused you harm and injury. If we fail to explain to the jury all those elements, the defense lawyer would be well within his right to ask the trial judge to throw out your case before he ever gets up to make his opening remarks.

In law we have a fancy legal term for this requirement.
We have to make out a 'prima facie case' in order to proceed forward with the trial after our opening arguments.
That just means that we lay out why we believe your doctor violated the basic standards of medical care, why his carelessness caused you harm and why your injuries are significant and/or permanent.

Once we do that, the defense will likely make their opening argument and we'll begin taking testimony from various witnesses.

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


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer