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In a Medical Malpractice Trial in New York, Who Goes First?

Our perceptions of what goes on at trial are often shaped by what we see in the movies and on legal dramas on TV.

Cross examination is always exciting in the movies.

Cross-examination is always filled with anticipation.

Cross-examination in the movies and on TV is usually the culmination and turning point where the witness breaks down and the good guy often comes out ahead.

The reality is that civil lawsuits that go to trial are not exactly portrayed the way they are in the media.

If you were to go into a courtroom and watch a witness being questioned, you would not hear background music playing on the overhead speakers.

In most accident cases, medical malpractice cases and even wrongful death cases it's also unlikely for you to see throngs of people in the back of the courtroom observing the trial.

These tend to be sparsely attended trials unless there is some significant issue that has generated tons of publicity.

If you were to observe what goes on in a civil trial here in New York from start to finish, you might be surprised to learn a few things you did not know before.

The first thing you would notice is that when the jury comes into the courtroom for the very first time, the judge will ask each of the attorneys, in open court, whether the jury is acceptable.

After each side acknowledges that the jury is acceptable, the jury will be sworn in.

Following that, the judge is going to give the jury initial legal instructions.

You typically don't see this portrayed in the movies or on TV.

The reason is that these instructions tend to be pretty boring.

There's not much drama associated with these initial instructions.

However, the instructions are extremely important for the jury.

They set the ground rules of what to expect for the duration of the trial.

These preliminary instructions explain to the jury what they can and cannot do each day.

The judge will tell them they cannot speak to the attorneys.

They cannot speak to the litigants.

They are not to discuss the case amongst themselves until the very end of the case.

Want to know why the judge tells them this?

It is typically so that the jurors do not form opinions about the case and are not influenced by what other members of the jury are thinking throughout the trial.

The reason why the jury is not to speak to the attorneys or the litigants is obvious.

The judge does not want anyone accusing one side that they are influencing a juror.

Not even to say hello in the morning.

If they were to do that, someone standing down the hall might get the impression that something else was discussed besides an innocent “Good morning.”

After the judge describes some of ground rules that the jury must follow, he will turn to the plaintiff's attorney, the attorney who represents the injured victim, to begin.

Since the injured victim is the one who is claiming that someone was careless and caused her harm, we have an obligation to put on all of our proof and evidence first.

That means we start the trial first.

We are the ones to give opening arguments first.

We are the ones to call our witnesses first.

We continue putting on testimony and evidence until we have exhausted all of our proof.

You should know that in the civil trials, we need not show with 100% certainty that what we are claiming is true.

We need not show, even with 75% certainty, that what we are claiming is true.

In fact, we are only required to show that we are slightly more likely right than wrong that what we are claiming is true.

That means we only have to tip the scales of justice ever so slightly in order for the jury to justify a verdict in our favor.

That means if the jury finds 50.1% in our favor that what we are claiming is true, then they are obligated to give us a verdict in our favor.

The jury does not have to sit there for days and weeks making absolutely sure that what we are saying is true. Instead, only that we are more likely right than wrong, by just the slightest amount.

You should also know that each time we put on the witness to testify, after I am done questioning my witness, the defense attorney has an opportunity to cross-examine my witness.

Let me share with you an interesting quirk that appears in medical malpractice trials here in New York.

Which witnesses go first at trial?

Do you tell a story in chronological order?

Do you put the injured victim on the witness stand first?

Do you call the patient's treating doctor to testify first?

There are different strategies to use when deciding which witnesses will testify and in what order.

You might think it would be useful to call witnesses in chronological order. You might believe this will help the jury understand the progression of events that occurred leading up to this lawsuit.

While that makes perfect sense, the reality is that most trials are not done that way.

There many reasons for that including the availability of witnesses.

In a medical malpractice case here in NY, you might think the first witness would be the person bringing the lawsuit who was injured.

You might think that the jury would want to hear immediately from the injured victim. They might want to learn what happened to her and what injuries she received.

You will find that the best medical malpractice trial attorneys in New York do not put their injured client on the witness stand as their very first witness.

Instead, you call the doctor who has been sued.

That is typically our very first witness.

That may seem a bit counterintuitive that we are putting the doctor on the witness stand first.

Let me explain...

In New York we are permitted to call to the witness stand the doctor you have sued.

The reason is that he is a litigant. He is a party to this lawsuit.

That means if we serve him with a subpoena, which is nothing more than a document compelling him to arrive in court on a certain date and a certain time, the doctor is obligated to appear and testify at trial.

The law in New York also allows us the opportunity to question this doctor as if he were a hostile witness.

Technically he is.

His interests are totally opposed to ours.

Because he is technically considered a hostile witness, I am permitted to question him as if I were cross examining a witness.

What that really means is that I have the ability to ask his doctor leading questions.

I also have the ability to ask this doctor expert opinion questions. In other words, I can question him as if he is an expert and ask for his medical opinion.

You see, when I call a witness to testify, I am typically vouching for the witness's credibility.

I'm telling the jury that this witness is favorable to us.

When I question my own witness, that is known legally as a direct examination.

I want to give my witness the opportunity to explain things to the jury.

The only way to do that is by asking open ended questions.

Questions like who, what, where, when, why, how.

All of those questions will give my witness plenty of opportunity to explain what happened and why.

When my opponent gets up to question my witness, he will not be asking open-ended questions.

Instead, he wants specific answers from this witness.

The only way to consistently get specific answers to questions is by asking leading questions.

A leading question is one that basically allows a witness to only answer yes, no or I don't know.

A leading question contains the answer within the question.

For example, “Mr. Jones, isn't it true you were driving on Route 25 on January 1?”

“Dr. Jones, isn't it true that you performed surgery on my client on June 1?”

That type of question requires the doctor to only answer yes or no.

When an attorney conducts cross examination, he typically has an agenda.

He will always have a story to tell and will do it in a way that simply requires a witness to answer yes, no or I don't know.

It is one of the only times were an attorney essentially speaks for the witness and gets that witness to either agree or disagree with him.

Getting back to medical malpractice example...

When I call the doctor whom you have sued as my first witness, I am permitted to question him as if I'm cross examining him.

That means I will keep my questions very short and very tight.

That means I will not give the doctor an opportunity to explain.

If I were to inadvertently asked the doctor “Why” and ask him to explain, he would then go on a lengthy narrative explaining why we are totally wrong.

His attorney will have every opportunity to ask him open-ended questions and explain when I am done with my questioning.

I on the other hand, need to tell my client's story through the doctor and using his own words.

Did you know that before the doctor ever testifies at trial, I will know what he is going to say at trial?

It's true.

What that really means is that I will know most of the answers to questions I will be asking him.

You might be asking yourself how I could possibly know the answers to questions that I have not yet asked the doctor at trial.

It's not that I am a mind reader.

It's not that I can anticipate what he's going to say.

Instead, it's something much more simple and revealing.

You see, during the course of your lawsuit I will have an opportunity to question the doctor during a question and answer session known legally as a deposition. This is considered pretrial testimony and carries the same exact weight as if the doctor were testifying at trial.

This question and answer session takes place a year or two before your case actually gets to trial.

During pretrial questioning, I will be asking the doctor many questions about what he did and why.

I will also ask hypothetical questions.

A hypothetical question asks the doctor to assume that certain facts are true.

He won't agree that our set of facts are true, nor will he like my question.

However, by law, he is required to answer my hypothetical questions.

Want to know why?

It's because there are clear disputes about what happened.

The injured patient believes certain things happened.

The doctor on the other hand believes a different set of facts.

When the case gets to trial, if the jury believes that we are slightly more likely right that wrong that our set of facts are true, then now, based upon the hypothetical questions I've asked the doctor during his pretrial testimony, the jury will quickly recognize that we have proven certain elements of our case.

“Dr. Jones, I want you to assume that the following facts are true...

  • On January 1, Mrs. Gonzalez was scheduled to have surgery on the left side of her brain.
  • You recommended that she have surgery on the left side of her brain.
  • You were planning to remove a tumor on the left side of her brain.
  • Mrs. Gonzalez signed a consent form to have surgery on the left side of the brain.

Assuming those facts are true, would you agree that performing surgery to the right side of her brain would be a violation of the basic standards of medical care?”

In that scenario, the doctor has to agree that performing surgery on the wrong side of the brain would be cleared violation of the basic standards of medical care.

By asking the doctor an entire series of hypothetical questions, we can now list all the facts in our favor and then ask the doctor opinion questions about what he thinks.

Likewise, at trial, the defense attorney will have an opportunity to do the same thing with our medical experts. He will ask them to make certain assumptions about facts that are different than the ones we propose. In order to change the facts, the attorney must have a good faith basis for claiming those facts are true.

One of the defense attorneys goals is to get our medical expert to acknowledge that if certain facts are not true or different than what we portray them to be, then the expert's opinion would be invalid.

Let's get back to what I was discussing earlier.

About how I know what the doctor is going to say when I question him at trial...

I will ask the doctor very similar questions to what I asked him during his pretrial testimony a year or two earlier.

If the doctor gives me an answer that is inconsistent or different than what he testified to during his pretrial testimony, now I can use that to show the jury that the doctor is inconsistent.

I can use that inconsistency to argue that the doctor is less than truthful.

I can also use it to show that the doctor might be lying.

Getting back to the original question I asked in the title of this article, who goes first at trial, the answer is we do.

The person who is bringing the lawsuit has an obligation to show that we are more likely right than wrong and we must put on whatever evidence and testimony is needed in order to show the jury that we are entitled to a verdict in our favor.

You should also know that there is another interesting quirk that happens at the end of the trial that you might not expect.

Again, it has to do with who goes first at the end of the trial.

You might think that because we are the ones bringing the lawsuit and we are the ones who go first with opening remarks and put on our witnesses first, that the same thing happens at the very end of our trial.

Contrary to what you see on TV and in the movies, that is not true.

After all the witnesses, testimony and evidence have been presented by both sides, it is now time for closing remarks.

Closing remarks are also known as closing arguments or summations.

It gives each side an opportunity to condense their arguments and highlight to the jury why they believe they are entitled to a verdict in their favor.

If you were to think of this logically, you would expect that the plaintiff's attorney would be the one to go first.

It makes sense.

However, that's not what happens in a civil trial involving an accident or improper medical care or an untimely death.

Instead, the defense lawyer will make closing arguments first.

There is a very important reason for why this happens.

It's so we get the last word.

Technically, that's not true.

The judge is the one who actually gets the last word in.

The defense attorney makes his closing remarks first.

Then, when he is done I have an opportunity to make my closing remarks.

You should also know that before the attorneys ever get up to make their closing remarks we will already have met with the judge to discuss the end of the trial.

You don't see this portrayed in the movies or on TV.

This step of the trial is critically important and much goes on behind the scenes.

Let me share with you what happens...

At the very beginning of the trial, each attorney is required to present to the judge a list of laws that they are asking the judge to explain to the jury when the case finishes. Each attorney will have done significant research and homework to determine which set of laws and legal instructions favor their side.

Legally, this is known as a request to charge.

We will give our requests to the judge at the very beginning of the case when we meet with him privately, before the trial actually starts.

The reason why the judge wants this information at the beginning is so that he and his law clerk can begin doing research to determine which exact legal instructions he will be giving to the jury at the very end of the trial.

The judge will literally pick and choose certain instructions from our requests as well as other standard instructions that are given in civil trials.

We will also try and modify certain standard instructions to fit this specific case.

After all the testimony and evidence have been presented, the judge will have a private conference with the attorneys.

This is known legally as a charge conference.

This is an extremely important part of the trial that takes place behind closed doors.

 This conference takes place in the judge's chambers.

A court reporter is present.

The attorneys are all present.

The judge tells the attorneys which sections of law and which legal instructions he will be giving to the jury after the lawyers have made their closing remarks.

The attorneys then present legal argument to Judge explaining why certain legal instructions should or should not be given.

These objections and legal requests are recorded by the court reporter.

They are done in order to preserve the attorney's objections and different requests.

If one side loses, then it may be because the judge's instruction on a key issue was incorrect. Making an objection on the record allows the attorney to preserve his right to appeal if he loses the case.

The jury never sees or learns about this particular conference.

The jury never gets involved in learning what legal instructions are going to be given to them at the end of the trial.

You never see this portrayed in the movies or on TV because it's not very exciting.

However, what happens during this charge conference is extremely important for both sides and could alter the outcome of the entire trial.

Once the judge has explained to each of the attorneys what sections of law he will be discussing with the jury, now the attorneys have a clear understanding of what they can and cannot say during closing argument.

Technically, we are not permitted to discuss the law with the jury during our closing arguments.

That function stays with the judge.

However, we can touch upon and highlight certain instructions that the judge will be discussing with the jury.

They are ways to craft an argument around what the judge will be discussing with the jury that could have an effect on how the jury perceives our case.

After this charge conference is finished, we then begin closing remarks.

The defense attorney goes first.

I go next.

I have the last word.

In civil trials in New York, there is no rebuttal from the defense attorney.

Instead, once I sit down, the trial judge then begins his closing remarks.

Actually, there's one more step that happens before the judge gives his legal instructions to the jury.

You might think it kind of strange and kind of alarming, but this happens in practically every single trial.

Once the attorneys have finished their closing arguments, the judge will instruct the court officer to lock the courtroom door.

The jury is still in the courtroom.

The litigants are in the courtroom.

The attorneys are in the courtroom.

The court reporter is in the courtroom.

The court officer and the court clerk are also in the courtroom.

You might be wondering why the judge would tell the court officer to lock the courtroom door?

It's for a very simple reason.

You see, these civil trials are all open to the public.

Anyone can come in or out at any time of day to observe.

That means that the courtroom doors open and close often.

Attorneys will come and go along with observers.

The judge asks the court officer to lock the courtroom door so that there are no interruptions during his discussion of law.

He wants the jury paying rapt attention to what he has to say.

In most civil trials, the judge's instructions take anywhere from 45 minutes to more than an hour.

As I mentioned earlier, the judge gets the last word.

Hopefully this article has given you a good overview of not just who goes first in a medical malpractice trial in New York but also how a trial actually works from start to finish.

To learn even more about how these types of cases work, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer