I'll tell you what happens...
The defense lawyer will happily pounce on the fact that he FAILED to live up to his promises.
The defense will eagerly show, with glee, that your lawyer promised you X, Y and Z and utterly failed to prove those things to the jury.
The defense attorney will argue that because you did not prove what you said you were going to prove, how can you possibly believe anything he has to say?
This is a compelling argument.
Here's the scenario...
You sued your doctor.
For medical malpractice.
For causing you harm.
For being careless on a particular date and time.
You lawyer hired a board certified medical expert who confirmed your doctor was negligent.
He violated the basic standards of medical care.
As a result of his carelessness, you suffered permanent harm and injury.
Lifelong injuries.
You had no choice but to sue your once-loved doctor.
Your physician turns around and laughs (to himself) at your lawsuit.
He says "Why are you suing me? I did nothing wrong!"
Then he says "If I did something wrong, so did you!"
Then he argues "If I did something wrong and it caused you harm, your injuries are not that bad."
That last argument has you fuming and seeing red.
To make matters worse, your doctor says "I'm never going to settle this case. Not for a single dime."
"Fine, I'll see you at trial," you tell your attorney.
That means two to three years later, your case finally comes up for trial.
It's now time for me to make opening arguments on your behalf.
The judge turns to me and says "Mr. Oginski, you may begin your opening remarks."
During my opening arguments, I tell the jury what the evidence will show.
I set out in detail, exactly what this doctor did wrong and how it caused my client injury.
I make certain promises to the jury.
I don't necessarily use words like "Ladies and gentlemen, I PROMISE YOU THAT we will show our claim has merit."
Instead, I might say "I will bring in a board certified medical expert to show you and explain how Dr. Jones failed to do what he was supposed to do according to the basic standards of medical care. I will show you through another medical expert how this doctors' carelessness was a cause of my clients' injuries. I will also show that we are more likely right than wrong that this physician should have known better and had he done the right thing, we wouldn't be here today..."
These are promises.
I am promising the jury that we will show X, Y and Z.
I am promising the jury that they will hear from certain witnesses who will testify about X, Y and Z.
I am letting the jury know that our claim has merit and we have the witnesses, evidence and testimony ready to back up our claim.
So let's get back to the headline I raised at the beginning of this article.
What if I FAIL to live up to my promises that I made during my opening arguments?
I'll tell you what happenes.
Let's say my medical expert was destroyed on cross examination by my opponent.
Let's say my experts' credibility was shredded because of things he said in the past on other cases.
That might mean that our claim that this doctor was careless may be very weak.
In that instance, the defense lawyer will have a field day during closing argument when he is told he may begin addressing the jury at the end of the trial.
"You know, Mr. Oginski stood before you just two weeks ago and looked you in the eye. He told you and in fact PROMISED you that he would show that my client, Dr. Jones, violated the basic standards of medical care. That was his PROMISE to you. Well, let's see who he brought in to tell you that. He brought in a convicted felon. Someone who defrauded the federal government. Someone who swindled Medicare out of millions of dollars for his own greed. This is the person they wanted you to believe."
"This 'medical expert' ran a clinic downtown that was nothing more than an opiod prescription mill. To make matters worse, he was arrested, convicted and spent four YEARS in a federal prison! This is who he brought in to tell you that my client did something wrong! Talk about calling the kettle black!"
"Oginski made you a promise. He FAILED to live up to his promise. You could tell by the look on his face that he had no idea his medical expert was a convicted felon. Neither could you. Could you imagine a well-known attorney knowingly hiring a convicted felon to support an injured patient's medical malpractice case? How outrageous!"
"Let's look at some of the promises my opponent made to you at the beginning of this case and how there's no possible way you can believe ANYTHING he and his client have to say..."
This is what happens when an attorney fails to live up to his promises during opening arguments.
Now, this is clearly an extreme example and I will state for the record that this NEVER happened in my career.
But I use it to illustrate what happens when a lawyer makes certain promises to the jury at the start of your trial.
If you make a promise, you better damn well keep your promise.
Do what you say you're going to do.
If you don't, the jury will hold it against you.
