You have filed a medical malpractice case in New York and your lawyer has just finished making his opening remarks at the beginning of trial. The judge after hearing the opening remarks says he is dismissing your case. Can the judge dismiss your case based on the opening remarks of you lawyer, even before the defense lawyer has had a chance to make his opening remarks?
The Judge is Fully Entitled to Dismiss Your Case after Hearing the Opening Remarks from Your Lawyer
When your lawyer delivers his opening remarks, he is expected to present what is called a prima facie case. Your lawyer has to show that you are more likely right than wrong, there was wrongdoing, this wrongdoing caused your injuries, and your injuries are significant or permanent. Your lawyer has to show to the jury that there are certain elements in this case that he is going to prove to them during the course of the trial.
If your lawyer fails to make out a prima facie case, which contains the elements of liability, causation, and damages, then the judge has every legal right to dismiss your case, even before the defense attorney stands up to make his opening argument or even before any testimony is ever taken.
How often does this Happen
In reality in a civil lawsuit involving medical malpractice in New York, it does not happen very often. However, there are some very rare instances, where the attorney gets up to make his opening remarks and fails to lay bare his proof, fails to tell the jury and the court about all the elements of liability, wrongdoing, the link between the wrongdoing and injuries, and extent of the damages.
If the attorney fails to do this then the judge on his own, without any prompting from the defense attorney, he can dismiss the plaintiff’s case. All this is done because the plaintiff’s attorney has failed to make out a case in his opening arguments.
What happens in Most Medical Malpractice Cases
Typically, the defense attorney will stand up after your lawyer has made his opening remarks and will move to dismiss your case because your lawyer failed to make a prima facie case on opening argument. In most instances, the judge will say the motion is denied, and will instruct the plaintiff’s lawyer to make his opening remarks presenting a prima facie case.
The defense lawyer on the other hand has to decide whether he wants to make any opening remarks because there is no legal requirement for him to do so. However, in most medical malpractice cases, the defense attorney will take advantage of this opportunity and give his opening remarks.
Therefore, for a plaintiff, opening arguments or opening remarks are pivotal. The plaintiff’s lawyer must present a prima facie case to the jury that has the elements of liability, causation, and damages. If he fails to do this, the judge is entitled to dismiss the case; however, this rarely happens, and the judge will ask the lawyer to make the proper opening arguments.