Can a Defense Lawyer Delay His Opening Argument

In a medical malpractice case in New York, after the injured victim's lawyer has made his opening remarks, does the defense attorney necessarily have to give his opening remarks? The answer is no. The defense attorney need not provide his opening remarks after the plaintiff's lawyer has done so.

Many people might find this odd because once the plaintiff's lawyer has made his opening arguments it is but natural for the defense attorney to give his opening arguments as well, in order to deflect what the opposing lawyer has just said. However, in New York, the defense lawyer does not have to do this.

The Defense Attorney can Wait to Present His Opening Arguments

In New York, the defense attorney of a medical malpractice case can wait until the injured victim's attorney has put on all their side of the witnesses, testimonies, and presented all their evidence. The defense attorney can wait until the injured victim's lawyer tells the judge that the plaintiff rests. The defense lawyer can then turn to the judge and say that he would like to make his opening remarks. The attorney will have the opportunity to present his opening remarks before he calls the defense's first witness to the stand.

It might seem weird for the defense attorney to sit and wait and not do anything the entire time, the plaintiff's lawyer is presenting his opening statements and putting on all his witnesses and evidence. However, whatever witnesses, testimonies, and evidence are put up by the plaintiff, the defense lawyer still has the opportunity to question each one of them.

The Defense will Assess the Case and Form an Appropriate Strategy

Nevertheless, what is the strategic move of the defense, when it opts to wait until everything is done by the plaintiff's lawyer and he has presented all the witnesses and evidence? There are many strategic reasons for the defense lawyer to delay his opening arguments. However, in the majority of medical malpractice cases in New York, you will see the injured victim's attorney going first, making opening arguments and then the defense attorney going right afterwards and making his opening arguments.

The goal of the defense attorney will be to try to deflect immediately, the arguments that have been raised by the plaintiff's attorney. He would want to do this because primacy is so important for the jury. This means what the jury hears first, they tend to keep in their mind. Even if the defense attorney may be able to disprove certain things later on, the attorney would want to attack head on as soon as possible. The only way to do that is to make opening arguments that is right after the plaintiff lawyer's opening arguments.

However, you need not be surprised if the defense lawyer tells the judge that he wants to hold off making opening arguments until the plaintiff has rested. The defense is allowed to do this, and in fact, the defense might have some strategy in mind that might be more effective than presenting arguments right at the beginning. Hence, it will depend on the medical malpractice case and the strategies adopted by the defense attorney.