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During Opening Arguments in a Medical Malpractice Case, Can I Call Jurors By Their Name?

In New York the answer should be no, I can't.

Why not?
Why can't I just say "Hey Mrs. Jones, nice to see you this morning as we begin our opening arguments. Did you get to the flea market this weekend like you told me you would during jury selection?"

By using jurors' names, we tend to naturally form a bond with them. There's nothing sweeter than hearing your own name being used by someone. When you have a conversation with someone you just met, they may repeat your name a number of times to help them remember your name.

Opening arguments are the very first time I get to talk to the jury about the facts of your case. It's the very first time I get to start explaining why we believe your doctor was careless and his carelessness caused you harm. During jury selection, I was not permitted to explain those details to the jury. The only thing the jury was told was that this was a claim of medical negligence against your doctor and that you suffered significant injuries because of his carelessness.

In addition, I am permitted to tell them who the parties to the litigation are. That's it. The rest of jury selection is asking the jurors questions about their backgrounds and their beliefs to see if they have biases in favor of or against anyone in our case.

During opening arguments, after the trial judge has given the jury initial instructions on what to expect during the trial, he will turn to me and say "Mr. Oginski, you may begin your opening remarks." 

As the attorney representing the injured patient, I go first. That's important. I get to make my arguments first. The jury hears our side of the events first. I want the jury to get to know me. To get to know you. To get to know the facts of your case. I want the jury to like you. To like me. To trust me.

Since the jury knows nothing about your case yet, it is my obligation to teach them about the facts of your case. To explain what our experts will say. To detail why we believe your doctor was careless. All that time, I'm trying to build credibility with the jury.

Imagine if I now refer to each juror by name during my opening arguments. Maybe even calling some jurors by their first name. "John, can you believe that this doctor didn't even send the patient out for a second opinion? I mean who does that?"

"Mrs. Gonzalez, I want you to pay close attention to our medical expert who's going to say that this doctor violated the basic standards of good medical care."

You know, in thirty years of practice, I have never seen an attorney use jurors' names during opening arguments. Come to think of it, I've never seen any case law that says lawyers CAN'T use jurors names during openings. Maybe there is a case or two that says you can't. I don't know.

What I do know is that if I were to use jurors' names during my opening arguments, the defense lawyer would likely stand up and yell out "OBJECTION JUDGE! OGINSKI CAN'T TALK TO INDIVIDUAL JURORS AND CALL THEM OUT BY NAME DURING HIS OPENING ARGUMENTS!"

In all likelihood, the judge will agree and direct me to not refer to the jurors by names.

What if I were to say "Juror #1, you do realize that it's poor medical practice if a doctor does A, B & C in this instance, right?"

No, no, no. That wouldn't be advisable either.

By the way, if an attorney does this, the next few minutes would be a spectacle that detracts from the real arguments he's trying to make. The judge would have to entertain legal arguments by both attorneys and then make a ruling. All this interrupts the pattern and flow of the opening arguments.

Better to stick to the facts, tell a compelling story and let the jury know why they have been called to judge the issues in this case and what they can expect to see and hear during this trial.

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


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer