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Opening Statements: A Critical Juncture

By: Thomas A. Moore and Matthew Gaier

August 5th, 2014

The importance of an effective opening statement cannot be overstated for any trial, and it may be heightened in actions involving complicated medical issues. Opening statements are the lawyers’ opportunity to introduce the jury to their clients, to the significant issues in the case, and to the pertinent facts that will be proven. While the primary purpose of the opening statement is the impression it creates for the jury, it can also have legal ramifications that could impact whether the jury gets to decide the disputes. This column addresses the components of an effective opening for the jury, as well as the potential legal implications.

The opening statement sets the stage for the jury. It should start with a brief explanation of the purpose of the opening and its limitations, so as to accurately fix the jury’s expectations. You do not want the jury anticipating the whole case to be laid out or a description of all of the evidence during the opening, if that is not what will be delivered.

A plaintiff’s attorney should specifically introduce the clients to the jury, and then proceed to tell the story of what happened that has led to their being in court. It should be emphasized that before these events occurred, the plaintiff never envisioned bringing a medical malpractice lawsuit. The goal is to make the jury identify with the plaintiff as a patient whose only intention was to receive appropriate medical treatment. Background information about the plaintiff also often helps set the stage for the damages and their impact.

The discussion of the facts should include the underlying events and circumstances that led to the negligent treatment. Describe the underlying condition or the patient’s symptoms and complaints. Explain specifically what the defendant did wrong and, at least more generally, how that was related to the ultimate outcome. Phrases like departures from accepted practice or medical malpractice need not be employed, but it should be made obvious to the jury that what was done was not right.

It is important to use the opening statement to educate the jury on the medicine. This includes defining the pertinent medical terms and explaining the significance of the signs, symptoms, conditions or treatment, as the case may be. Since the first witness is typically a defendant doctor, an adequate medical background is necessary for the jury to understand the terminology and principles that will be brought out during the examination. Providing this information to the jury also helps establish the lawyer’s knowledge and credibility on these technical matters, and preempts the defendant’s effort to be the one to teach the medicine to the jury. However, care must be taken to make these concepts understandable to jurors in plain, everyday English. While the medicine should not be oversimplified, it is vital that the jury not be intimidated or confused by complex medical concepts.

One of the pivotal tasks of devising an effective opening is discerning just how much detail to provide, and what to hold back. It is absolutely critical to leave an element of surprise for the jury as the case unfolds before them. The jury should be able to experience the courtroom drama during the trial. That will not happen if jurors are told in advance of every important piece of evidence that will be revealed. The key is to identify that which they need to be told, and that which may safely be stored for the right moment.

In making this determination, it is paramount to remember that the defense counsel will have the opportunity to discuss that which the plaintiff’s lawyer opted not to. This may give the defense the advantage of addressing something the plaintiff has not, but it also poses perils. The defense may inadvertently alert plaintiff’s counsel to something they did not realize. Conversely, defense counsel may make representations concerning a subject not covered by plaintiff’s counsel, only to have evidence elicited during the trial that undermines defense counsel’s representations and credibility.

The plaintiff’s attorney faces a similar dilemma with respect to a weakness or problem in the plaintiff’s case. It should be addressed on opening, at least, to take the wind out of the defendant’s sails and, if possible, to explain it away. However, doing so may sometimes involve the risk of bringing out something of which the defense was unaware. It is always the best rule not to underestimate your opponent, and if you fail to address a problem that the defense brings out on opening, it may hurt your credibility.

Credibility is everything. Therefore, no trial lawyer should ever promise something she cannot deliver. During summations, the attorneys will be held accountable for what they said in their openings. The jurors should be told up front that you expect them to hold both sides to what they promised on openings.

Damages should not be addressed in detail on the opening statement. The jury should broadly be informed of the seriousness of the injury. If the injury is not catastrophic or disabling, the severity should not be overstated, but the jury should be made to understand that it is significant to the plaintiff.

Dismissal After Openings

The above discussion addresses opening statements as a vehicle for prevailing with the jury. However, statements made during openings may also have serious legal consequences. Although exceedingly rare, cases can be dismissed based upon opening statements. As a general rule, such dismissals are disfavored. Standards have nevertheless evolved to assess those unusual circumstances in which that relief is justified.

As far back as 1880, the U.S. Supreme Court upheld a dismissal after the plaintiff’s counsel’s opening statement in Oscanyan v. Arms Company, 103 U.S. 261 (1880), an action to recover for commissions on the sale of firearms to the Turkish government. During his opening statement, the plaintiff’s attorney indicated that the sales were facilitated by the influence the plaintiff wielded in his capacity as the consul-general of the Ottoman government.

The defense counsel then moved for, and was granted, a directed verdict on the ground that the contract was void for corruption and prohibited by public policy. The Supreme Court affirmed, essentially finding that there was no doubt as to the accuracy of the attorney’s statement and that the facts admitted required dismissal.

In Clews v. Bank of New York Nat. Banking Ass’n, 105 N.Y. 398 (1887), the New York Court of Appeals reversed a dismissal after the plaintiff’s opening, stating:

Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings.

Several years later, in Hoffman House v. Foote, 172 N.Y. 348 (1902), the court again reversed a dismissal after the plaintiff’s opening statement, setting forth standards to be applied to such motions:

The judgment in this case cannot be sustained without adopting some one of three possible theories incumbent upon the defendant to clearly establish. If it can be demonstrated either (1) that the complaint does not state a cause of action or (2) that a cause of action well stated is conclusively defeated by something interposed by way of defense and clearly admitted as a fact, or (3) that the learned counsel for the plaintiff, in his opening address, by some admission or statement of facts, so completely ruined his case that the court was justified in granting a nonsuit, then this judgment ought to be sustained; but not otherwise. The practice of disposing of cases upon the mere opening of counsel is generally a very unsafe method of deciding controversies, where there is or ever was anything to decide. It cannot be resorted to in many cases with justice to the parties, unless the counsel stating the case to the jury deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the action.

The principles enunciated in Hoffman House have endured to this day, including the three-part inquiry,1 as well as the general rule that dismissals after opening statements are disfavored and warrant extraordinary circumstances.2

In its leading opinion by then Justice Albert Rosenblatt in DeVito v. Katsch, 157 A.D.2d 413 (2d Dept. 1990), the Second Department provided a comprehensive exposition on the subject, coalescing principles gleaned from more than a century of case law. Preliminarily, the court observed that the CPLR contains no provision for a dismissal based upon opening statements, but that CPLR 4401 contemplates judgment based upon admissions, which, “at least theoretically,” includes opening statements. To that extent, however, “the admissions must be so self-defeating as to irreparably preclude all possibility of judgment….” The court noted that “a party is not so rigidly bound by an opening that every slip or omission, however reparable or unguarded, is ipso facto fatal….”

The opinion took notice of the various terms used by the courts to express the reluctance that should be employed in dismissing cases after openings—”great caution,” “dangers of dismissal,” “unsafe,” “disfavored,” “not to be encouraged.” Against this background, the opinion explained the criteria that has developed:

In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, of course, the complaint…and the bill of particulars…to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury.

In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff…, affording every inference in support of the complaint…which, for these purposes, must be accepted as true…, or, at least provable…. Having done so, the court should not dismiss unless there is “no doubt” that the plaintiff cannot recover….Dismissal is therefore unauthorized if there is any view under which the plaintiff may succeed…, or any theory by which it may prevail…. Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession…so ruinous to the plaintiff’s case that dismissal is warranted….These inquiries constitute the so-called three-prong test that courts have come to apply….3

DeVito was a personal injury action stemming from a motor vehicle collision. During his opening statement, the plaintiff’s attorney indicated that he would be calling no one who witnessed the accident. The defendant then moved to dismiss on the ground that the opening was inadequate. When the plaintiff sought to expand upon it, the trial court denied the request and dismissed the complaint. The Appellate Division reversed, finding that liability may be proven circumstantially, without eyewitness testimony, and that the plaintiff should have been permitted to make an offer of proof.

There have been a few extraordinary cases in which dismissal after opening statements has been affirmed. For instance, in Tewari v. City of New York, 249 A.D.2d 175 (1st Dept. 1998), such a dismissal was upheld where the plaintiff’s opening indicated that the city’s liability was premised upon its duty to prevent ultrahazardous activity in a public park, and that the activity alleged to have caused the injury was driving a car at the speed of five miles per hour on a park roadway. Similarly, in Giroux v. Snedecor, 178 A.D.2d 802 (3d Dept. 1991), where the only legal basis alleged for which the defendants could have been held liable was the creation of the defective condition, the case was properly dismissed based on a concession in the plaintiff’s opening statement that the defendants did not create the condition.

Medical Malpractice Actions

Our research has disclosed three appellate decisions addressing dismissal after opening statements in medical malpractice actions. In the earliest of those, Alexander v. Seligman, 131 A.D.2d 528 (2d Dept. 1987), the Appellate Division upheld the dismissal. The plaintiff in that case sought to amend her complaint at the start of the trial to assert a new theory of liability based upon previously unalleged facts. In seeking the trial court’s permission to amend, “plaintiff’s counsel effectively conceded that he could not make out a prima facie case against the defendant Seligman within the parameters of the complaint without the proposed amendments….”

The trial court denied the motion to amend and dismissed the complaint against that defendant. The Appellate Division affirmed, noting that the plaintiff had no excuse for failing to amend for four years after learning information upon which the proposed amendment was premised, and that the defendant would have been prejudiced.

In Escobar v. Allen, 5 A.D.3d 242 (1st Dept. 2004), where the plaintiff alleged that defendant physicians negligently performed a bunionectomy, including leaving metal fragments embedded in her foot, the trial court “very, very reluctantly” granted the defendants’ motion to dismiss on the ground that plaintiff’s expert, a podiatrist, was not competent to testify to departures by physicians. The Appellate Division reversed, finding that the podiatrist was qualified to testify regarding departures from the standard of care in the treatment undertaken by the defendant, and also that even without expert testimony, she could have prevailed under the doctrine of res ipsa loquitur.

Most recently, in Fudge v. North Shore Long Island Jewish Health Services Plainview and Manhasset Hosps., 117 A.D.3d 78 (2d Dept. 2014), the Appellate Division reversed the trial court’s sua sponte dismissal of the complaint against two of the defendants in a medical malpractice action during the plaintiff’s opening statement. The appellate court noted that the trial court “erroneously interrupted the plaintiff’s counsel’s presentation of his opening statement, and issued an anticipatory ruling that [the two defendants] were not liable to the plaintiff.” It found that the trial court’s determination “was based upon pure conjecture and surmise, without any legal basis, and absent any evidentiary proof.”

It found that none of the three criteria used to evaluate dismissals after opening was satisfied, and that dismissal was actually directed before the completion of the opening statement. The Appellate Division concluded that “there were no extraordinary circumstances warranting sua sponte dismissal of the complaint insofar as asserted against [the two defendants], and that the trial court had violated the law of the case doctrine because it disregarded a prior order by another justice that found issues of fact regarding the liability of those defendants.

Only in the most unusual circumstances can an opening statement lead to a dismissal, but it is a potentiality of which one needs to be aware. By contrast, opening statements are virtually always important for the jury and the manner in which they will perceive the events at trial. Care must be exercised to ensure that what is said to the jury during this first phase of the trial highlights the points that will be established for them during the ensuing days or weeks.


1. See Westchester Mall v. Hedvat, 104 A.D.3d 678 (2d Dept. 2013); Beshay v. Eberhart L.P. No. 1, 69 A.D.3d 779 (2d Dept. 2010); Rivera v. Board of Ed. Of the City of New York, 11 A.D.2d 7 (1st Dept. 1960).

2. See Jones v. Davis, 307 A.D.2d 494 (3d Dept. 2003); Martinez v. City of New York, 224 A.D.2d 242 (1st Dept. 1996); Benz v. Burrows, 191 A.D.2d 1021 (4th Dept. 1993).

3. Extensive citations and a footnote have been omitted.

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