Criminal investigations are done before the defendants know they are
Civil investigations are usually done after the case is filed and the
defendant is notified.
Legal privilege for communications and records must be protected at all
times—once lost, it cannot be regained.
Courts and juries do not understand scientific evidence.
Understanding how trials work can help medical care practitioners cope
with the stress of litigation.
Only lawyers love litigation. For the parties, especially the defendant, it can be
terrifying and incomprehensible. Understanding how civil litigation works can
defuse some litigation anxiety and can help plaintiffs and defendants be better
partners in their own cases. For defendants, this can save their life: several
physicians have committed suicide as a result of depression over medical
malpractice litigation. For plaintiffs, and medical care practitioners are
increasingly being forced to become plaintiffs to protect their own rights, it is
critical to understand the limitations of litigation and the risks, both economic
To the untutored observer, civil and criminal litigation seem very similar. In
many jurisdictions, including the federal courts, they are tried in the same
courtrooms by the same judges. They both have juries and the basic rules of
procedure and evidence are similar. There are profound differences, however,
that derive from the extra constitutional protections afforded criminal
defendants. This section will use civil litigation as a model and will discuss the
differences with criminal litigation as they arise.
Movies and television give the impression that trials move quickly and are
interesting; the testimony of witnesses is fast-paced and stimulating; and, most
deceptively, that the trial quickly follows the crime or accident precipitating it.
In real life, trials are tedious, emotionally draining, and generally bewildering
to plaintiffs and defendants alike. Medical care practitioners should understand
how trials are conducted and the basic standards for the admission of
evidence. This will help them make decisions about when it is appropriate to
go to trial. More important, by understanding how evidence is presented to the
jury, medical care practitioners can better avoid situations that lead to liability.