Go to navigation Go to content

In a Medical Malpractice Case, Why do Attorneys Get to Make Opening Arguments?

You sued your doctor.
For medical malpractice.
You claim he was careless and caused you injury.

We have a medical expert who confirms you have a valid case.

You doctor disagrees.
He says he did nothing wrong.
He says you caused your own injury.

He also claims your injuries are not that bad.
Your case goes to trial.
Two years later your case goes to trial.

After the jury is selected, the judge talks to the jury.
Then he turns to me and says "Mr. Oginski, you may begin your opening remarks."

Why do I get to make opening arguments to the jury?

When we pick a jury, we are not allowed to tell the jury what the facts of your case are.
We are not permitted to tell the jury what the law is in your case.
We are prohibited from explaining the details of your claim during jury selection.

The jury is told that this is a medical malpractice case.
I will tell them this case involves claims of improper medical care against a doctor and/or a hospital.
I will even tell them who is bringing the lawsuit and who is being sued.

But I'm really not allowed to tell them much more than that.

I cannot tell them what your injuries are.
I cannot disclose what activities you are unable to do today.
None of that is permitted during jury selection.

After we have selected six jurors who have told us they can be fair and impartial, we're now ready to start your trial.

The judge brings the jurors into the courtroom.
He introduces himself and gives them a few preliminary legal instructions.
After a few minutes, he turns to me and says "Mr. Oginski, you may begin with your opening remarks..."

The reason we get to make opening arguments is to let the jury know exactly what this case is about.
For the first time ever, they will now learn the details of your claim.
They will learn what we believe was done wrong.

They will learn how your doctors' carelessness caused you harm and injury.
They will also learn how your injuries are permanent.
They're hearing the details for the very first time during opening arguments.

You should know that openings are not the time for attorney to yell and scream.
It's not that type of argument.
Also, it's not simply a boring recitation of what the facts are.

I need to capture the jury's attention.
I want them sitting on the edge of their seats realizing that the testimony they are about to hear will be interesting.
I want them to get emotionally invested in your case.

I can tell them, for the very first time why you brought a lawsuit against your doctor.
I can tell the jury a story of how the doctor violated the basic standards of good medical care.
I can begin to let the jury know the injustice that happened that was preventable.

Some attorneys tell the jury "Ladies and gentlemen, the opening is a chance for me to give you an outline, a map, an overview of our case." Blah, blah, blah. That's a wasted opportunity to capture their attention. Think about when you watch a TV show you love. Or when you're watching a trailer for an upcoming movie.

You're shown conflict.
You're shown impossible situations that the character is hoping to get out of.
It's action packed.

It's riveting.
It keeps you glued to the TV.
You want to keep watching.

Really good trial attorneys use this same strategy.
Instead of explaining in boring fashion what the opening argument is and how it fits into a trial, get right to the story.

"Sally was 23 years old when she was finally diagnosed with advanced metastatic breast cancer. Join me for a few moments as I share with you what her doctor did wrong that ruined Sally's young life..."

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


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer