There are many reasons your attorney may recommend that a lawsuit is needed in your case:
- The insurance company has denied responsibility/liability for your claim
- The insurance company offers an inadequate sum to compensate you for your injuries
- The insurance company will not respond to our demands for settlement
In North Carolina, the law says we must sue the person who was “at fault” in the accident. You CANNOT sue the insurance company. In fact, you cannot mention the existence of insurance at anytime throughout the jury trial of your case.
When we file a lawsuit against the “at fault” person, the insurance company will hire a lawyer to defend the lawsuit and the “at fault” driver.
The litigation process is very time consuming and there is a great deal of work that has to be done by both the attorney and the client. There will be a lot of time demands and work that the client will need to do during the pursuit of their lawsuit. The following is a summary of the process of a lawsuit and what you can expect to happen during the course of your case.
II. Starting the Lawsuit
Your lawsuit is started with a simple pleading called a “Complaint”. Your attorney will draft the complaint and will often ask you to review it before filing to ensure accuracy. The Complaint is then filed with a form called a “Summons” at the courthouse. Your attorney will choose which court to file the lawsuit in based on residency and the value of your case. Once the lawsuit is filed, the client is referred to as “Plaintiff”. The at-fault driver is referred to as “Defendant”.
After the Summons and Complaint are filed, they are then served upon the Defendant usually via the Sheriff. The insurance company is also served with these documents via certified mail, which prompts them to hire a defense attorney.
After the Defendant is served, he has 30 days (through his attorney) to file an “Answer” to our Complaint. In this Answer, he will admit or deny our allegations. He may also raise certain defenses to our claim. Depending on whether or not defenses are raised, we may have to file a responsive pleading called a “Reply” within 30 days after receiving the Answer.
Once the Complaint, Answer and Reply are completed (which can take up to 90 days), then we move on to the Discovery Phase of the lawsuit.
III. Discovery Phase
The discovery phase describes the length of time in your lawsuit where both sides will have an opportunity to “discover” information about the other side. This phase can take up to 4 months to complete.
There are four mains ways to “discover” information about the other side:
- Requests for Production of Documents
- Requests for Admissions
Each of these four tools are available to each side. As your attorney, we will implement most, if not all, of these tools. You can be assured that the other side will also use these tools.
- Interrogatories: These are written questions (not exceeding 50 in number) requesting certain information about the case. We have 30 days to answer these questions once they are served upon us. When your attorney receives these questions in her office, she will send you a copy to answer, usually requesting that they are returned to our office within 10 days. It is extremely IMPORTANT that these questions be answered in the time frame requested by your attorney as the court sets strict deadlines for the final answers to be due. If the answers are not provided on time, the Court could require you to pay costs and attorney’s fees to the defense attorney.
- Requests for Production of Documents: These are also written questions but particularly ask for certain documents. Again, we have 30 days to answer these questions so it is imperative to get the information your attorney asks of you in the required time frame.
- Requests for Admissions: These too, are written questions, but basically asking you to admit or deny certain facts. Your attorney will most often be able to answer all these questions based upon the information in our file. However, the attorney may need additional information. You also have 30 days to answer these questions, but this deadline is extremely critical to meet because if they are not answered in the required time frame, every question is deemed “admitted”. This could seriously affect your case, especially if the defense were to ask a question such as, “Admit you were not injured in this accident”. If we do not deny this within 30 days, it is deemed admitted and you are essentially admitting you were not injured in this accident.
- Depositions: These are questions that are asked of you in person, by the defense attorney, after you are put under oath. You can guarantee that the defense attorney will want to take your deposition at some point in the discovery phase and you, as the Plaintiff, are required to attend. The deposition is usually held in your attorney’s office and your attorney will be present with you. The deposition will usually last 1-2 hours. Your testimony is taken down by a court reporter and then typed into written transcript. This transcript can be used later at the trial to impeach you if your testimony changes any. Therefore, it is important to be well prepared for your deposition. Your attorney will want to meet with you prior to your deposition to go over your testimony and give you a chance to review your case in more detail.
IV. Mediation Phase
In Superior Court, North Carolina has implemented mandatory mediation. This means that the Court will actually order all of the parties involved to sit down and try to settle the case. This is done in front of an independent mediator who will facilitate settlement discussions and help to try to resolve the dispute.
It is mandatory that you, the Plaintiff, attend the mediation. Mediations can last a few hours or can actually take all day in an attempt to settle the case. The Plaintiff and the Defendant have to pay the mediator for his time spent. There are no guarantees that your case will settle at mediation. If the case cannot be settled, then the next step is to try your case in front of a jury.
V. Jury Trial
The last stage of your case is the actual jury trial. The frustrating part is waiting for a court date. Your court date is set by either the trial judge or the trial court administrator. It can take quite a long time to actually get your case heard in front of a jury. For example, your case may be set for a particular week, but there may be several other cases ahead of yours, and your case may not get reached that week. Then you must wait for another setting. From the filing of your lawsuit, to an actual trial date, it can take a year to a year and a half to get your case resolved.
If your case is reached, there is no guarantee as to what part of the week it might start. You might start on a Monday or you may not get reached until a Wednesday. Regardless, you must be prepared to be available the entire week that your case is set for trial. The average jury trial lasts from 2-4 days. It is mandatory that you be present during the entire trial.
VI. Risks of Lawsuit
The ultimate risk of your lawsuit is that there is just no guarantee what a jury will do. Most of the counties in our area support very conservative juries, meaning the verdicts are not very large. Unfortunately, we live in the age of Tort Reform, and many people (jurors) are already biased against people who bring lawsuits for personal injury. This explains why the insurance companies often deny claims, forcing people into court with no guaranteed outcome.