If war is the ultimate failure of diplomacy, trial is the ultimate failure of negotiation. In the 21st century, civil and criminal processes are largely driven by mechanisms promoting settlement, or entry of a plea agreeable to the parties, to the exclusion of trial itself. Indeed, there are barriers precluding trial in most jurisdictions until alternative dispute resolution (ADR), generally mediation, has been attempted.
Attorneys, once focused from the time they are retained on gathering evidence for trial preparation, are now forced on a continuous basis to evaluate the merits, the relevant contingencies, and the potential value of the claim, in preparation for civil settlement. In the criminal context, the focus at all times is on the risk of conviction. Indeed, in many cases, counsel does not enter “trial mode” until ADR (or in the criminal context, plea bargaining) has failed.
In the contest of administrative process, jury trial is not generally available in most jurisdictions, but hearings before administrative tribunals are common, many considered quasi-criminal as opposed to civil. There, the tribunal itself serves as the jury, with appellate process available thereafter. In certain administrative matters, fact finders must have specialized knowledge not necessarily available to the lay jury pool, ergo why the tribunal itself must serve as the “jury.” Such is true in the cases of state medical, nursing, and pharmacy boards.
In civil and criminal matters, expert witnesses may be called to assist the fact finder in reaching conclusions that will likely require specialized knowledge and opinion testimony prior to deliberation and the rendering of a verdict. In the context of oncology, the lay public clearly has little specialized knowledge, whereas physicians in general, specialists providing cancer care and radiation and medical oncologists themselves, compose the graduated knowledge cohort that may be required to render factual findings, conclusion of law, a verdict, and finally, a penalty. Needless to say, oncologists’ specialized knowledge base and the standards of care applicable to the many patients with literally hundreds of varying tumor histologies, grades, and clinical stages are best evaluated by other oncologists, but our legal system makes no such accommodation.
This chapter will explore trial practice, theoretically in all of the above arenas, those processes preceding trial, the pretrial process, trial itself, and the posttrial and appellate processes thereafter. Emphasis is placed on specific scenarios likely to affect oncologists.
LITIGATION IN LEGAL ONCOLOGY
Trials and hearings in general
The term trial typically is applied only in the civil and criminal context and denotes a process governed by rules, whereby a fact finder (a judge or jury) renders a verdict for or against a party or parties based on evidence and guided by an authority as to matters of law, generally a judge.
Hearings may also be before judges but, particularly in the ...