Public Health Law Map - Beta 5 - Medical and Public Health Law Site

attorney until discussing the claim with the insurer. If it is an uninsured claim,
perhaps for defamation or antitrust, the defendant must contact his or her own
attorney at once and have the attorney deal with the plaintiff’s attorney.
If the plaintiff makes a settlement offer before a lawsuit is filled, that offer should
always be evaluated. Outside of the malpractice area, many cases can be resolved
much more satisfactorily before litigation hardens both sides’ positions. In
employment cases, for example, the defendant may be able to resolve the situation
by a job transfer or some severance pay, whereas fighting the case could disrupt the
workplace and risk a substantial jury verdict. For problems that affect more than
one potential plaintiff, every additional case will have access to all the information
produced in the first lawsuit, and the publicity will only encourage others to sue.
Medical malpractice cases are much less likely to be settled because of the federal
reporting requirements for the National Practitioner Data Bank.
B. Pretrial
The pretrial phase of a criminal trial begins when the defendant is indicted. The
indictment states the crime the defendant is accused of in sufficient detail to put the
defendant on notice of the charges. This is important because it allows the defendant to
prepare a defense and it delineates the subject matter that the defendant cannot be
prosecuted for in the future because of double jeopardy. The defendant can also ask for
a “bill of particulars,” which elaborates on the charges and states the facts that support
the specific elements of offenses that the defendant is charged with. Although this will
provide the defendant with additional information, the government can comply with
the requirements of a bill of particulars without giving away much of its case.
The pretrial phase of a civil case begins when the plaintiff or a government agency
files pleadings with the court that notify it that the plaintiff is commencing litigation
against the defendant.
1. Pleadings
Pleading is the general term for the papers that set out the plaintiff’s allegations and
the defendant’s defenses. These pleadings go by different names in different courts.
In some courts, the plaintiff’s pleading is called the complaint and the defendant’s is
the answer. In others they are original petition and answer.
It is this initial pleading that the plaintiff must have served on the defendant. The
defendant has a certain amount of time (frequently 20 days) to file a reply to the
initial pleading. If the defendant has been properly served and fails to file the reply
on time, the plaintiff may ask the court to rule in his or her favor as a matter of law.
In most cases, the court will allow the defendant to file after the deadline but
frequently requires the payment of a fine to cover the cost of the delay to the
plaintiff. Since the court is not required to accept late filings, it is imperative that the
plaintiff’s allegations be answered on time.
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