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Can a Lawyer Object During Opening Arguments in a Medical Malpractice Trial in New York?

First, what is an 'objection'?

It's when you believe a question or an argument is improper.

If an attorney believes a question being asked is improper, how does he let the judge, the jury and his opponent know what he thinks?

The answer is simple...

He tells them.

How does he tell them?

Simple.

He stands up to draw attention to himself.

Then, in a loud and clear voice he yells out "OBJECTION JUDGE!"

You must always stand when addressing the judge in court.

It's a sign of respect.

Objections are typically made during trial when an attorney is questioning a witness.

There are many different types of objections an attorney can make.

You should know that most trial judges refuse to allow an attorney to make speaking objections.

What's a speaking objection?

Glad you asked...

It's when an attorney makes an objection and then gives a long-winded explanation about why he's making an objection.

In some cases, lawyers would actually explain the correct answer in their objection.

Judges don't like speaking objections.

Instead, judges want an attorney to voice an objection and in just a few words tell the judge what the objection is.

"Objection! Hearsay."

"Objection, he's leading the witness."

"Objection, irrelevant."

"Objection, assumes facts not in evidence."

There are many more objections that can be made.

Once an attorney makes an objection, the judge will need to make an immediate decision.

Sometimes he will ask for clarification.

Sometimes he will ask the other attorney to clarify.

Sometimes he will tell the attorneys he needs more time to decide and ask for written legal briefs on the topic.

The judge has two immediate options when an attorney makes an objection.

He will say either "Objection Sustained" or "Objection Overruled."

Objection sustained means the attorney cannot and should not be asking that question.

Objection overruled, means that the judge is overruling the lawyer's objection and telling the lawyer asking the question to continue. It also tells the witness that he can answer the question.

Making an objection has many purposes.

One is to disrupt your opponent. 

Two is for appeal purposes.

The judge may have made a ruling that is legally incorrect.

In order to preserve your right to appeal that issue later, an attorney MUST raise the objection at the time it is made during trial, otherwise he likely waives his right to appeal that issue if he loses the case.

That is why you will often see attorneys make repeated objections during trial.

It's not just to be a pain in the ass. Rather, there are strategic reasons and also legal reasons to make objections.

Now, getting back to the title of this article...

Is it ever acceptable for an attorney to make an objection during opening arguments?

The answer is...maybe.

You see, opening arguments are not legal arguments.

Instead, they are opening comments to the jury about what we intend to show during the trial.

"Ladies and gentlemen, during this trial we intend to show that we are more likely right than wrong that the doctor violated the basic standards of medical care. We will show that we are more likely right than wrong as a result the doctor departing from good and accepted medical care causing this patient injury. We will show you that we are more likely right than wrong that this patient's injuries are significant and permanent."

Typically, since these comments are not legal arguments, an opposing attorney does not make objections during opening arguments. However, there are instances where an opposing lawyer will delve into topics or territories that the judge has already ruled he cannot discuss.

In that instance an attorney has a legal and ethical obligation to stand an object.

The judge will then make an immediate ruling and tell the attorney to continue with his opening comments.

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

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer