Short Answer

In North Carolina, your contingency fee usually increases when a lawsuit is filed, if your written agreement says so. Here, your contract sets the fee at 33 1/3% for pre-suit settlements and 40% if litigation is required, so filing suit triggers the higher percentage. Case expenses are separate from the fee and should be spelled out in the agreement. The $300 flat fee for medical payments coverage under your own policy is a separate charge and does not change.

Understanding the Problem

You want to know whether your fee goes up if your lawyer must sue the at-fault driver in North Carolina. You are the client; the action is filing a lawsuit on a third-party injury claim; the trigger is moving from settlement talks to litigation. One key fact: your agreement says 33 1/3% pre-suit and 40% if litigation is required, plus a separate $300 fee for medical payments coverage.

Apply the Law

North Carolina requires contingency fee agreements to be in writing and to state how the fee is calculated at different stages (for example, pre-suit, after filing suit, on appeal) and how expenses are handled. Typically, the percentage increases once litigation begins, which is usually when a complaint is filed in the proper North Carolina court. The case is filed with the Clerk of Superior Court in the county with venue; deadlines include the statute of limitations for personal injury claims.

Key Requirements

• Written fee terms: The agreement must clearly state the percentages for settlement, litigation, and (if applicable) appeal, and explain how expenses are deducted.
• Trigger for higher fee: The higher percentage usually starts when a complaint is filed (litigation), unless your contract defines a different trigger.
• Expenses vs. fees: Litigation costs (filing fees, service, experts, records) are separate from the attorney’s fee and must be explained, including whether they are deducted before or after the fee.
• Court and timing: File in the correct North Carolina trial court before the statute of limitations expires to preserve your claim.
• Disbursement order: After recovery, the fee is paid from settlement/judgment funds, then valid healthcare/provider claims are addressed under North Carolina lien law.

What the Statutes Say

• NC Rule of Professional Conduct 1.5 (Fees) - Contingent fees must be in writing and state percentages and expense treatment.
• N.C. Gen. Stat. § 1-52 (Three-year limitation) - Most personal injury claims must be filed within three years.
• N.C. Gen. Stat. § 44-50 (Medical liens) - Sets the order and limits for paying certain medical claims from recovery after attorney’s fees.

Analysis

Apply the Rule to the Facts: Your agreement says 33 1/3% if the claim resolves without a lawsuit and 40% if litigation is required. If your lawyer must file a complaint to move the case forward, the fee increases to 40% on any third-party recovery. The $300 flat fee for medical payments coverage under your own policy is separate and does not change. Confirm in writing whether expenses are deducted before or after the fee and exactly when the higher percentage is triggered (upon filing vs. later steps).

Process & Timing

1. Who files: You (through your attorney). Where: Clerk of Superior Court, Civil Division, in the proper North Carolina county. What: Civil Summons (AOC-CV-100) and a Complaint stating your claim. When: File before the statute of limitations runs (commonly three years from the crash).
2. After filing, the summons and complaint are served on the defendant. The defendant typically has 30 days to answer (extensions are common). Courts often require mediation before trial; timing varies by county and case complexity.
3. Resolution occurs by settlement or judgment. After recovery, your attorney disburses funds from the trust account: fee per the contract, then qualifying medical claims as required by North Carolina law, and the balance to you with a final accounting.

Exceptions & Pitfalls

• Trigger language matters: Some agreements trigger the higher percentage the moment a complaint is filed; others use different milestones. Ask for clarity before filing.
• Expense calculation: Your contract should say whether expenses are deducted before or after the fee and whether you owe expenses if there is no recovery.
• Court selection and venue: Filing in the wrong county or court can cause delays or dismissal; confirm the proper venue before filing.
• Lien and bill handling: Medical liens and claims must be addressed correctly under state law; mistakes can delay disbursement or reduce your net.
• Appeal stage: Some contracts have a different percentage if the case goes on appeal; check whether that applies and under what conditions.

Talk to a Personal Injury Attorney

If you're weighing whether to file suit and how that affects your fee, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.