Why file a lawsuit?
You may wish to consider filing a lawsuit if any of the following are true:
- The insurance company has offered you an amount of money that will not cover your medical bills.
- The insurance company has denied your claim.
- The insurance company will not respond to demands for settlement.
When a lawsuit is filed against the at-fault driver, the insurance company will hire a lawyer to defend that at-fault driver. In North Carolina, you must sue the at-fault party to the accident. There are extremely limited exceptions to when and where you may sue an insurance company directly. In most cases, the Defendant in your lawsuit will be the driver deemed to be at fault for the accident.
Litigation is time-consuming. A substantial amount of work must be put in not only by your attorney, but also by you as the client in keeping up with time demands and deadlines. This information on the phases of a typical lawsuit will explain deadlines and necessary material that will prove to be extremely important to your case.
Starting the lawsuit
Your lawsuit begins with a pleading known as a “Complaint.” Your attorney will draft the Complaint and you should have the chance to review it before it is filed. The Complaint is then sent with a form called a “Summons.” There is typically a filing fee that ranges between $80-$220 for the Summons and Complaint to be filed with the Court. Your attorney will choose where to file the lawsuit based on your residency and the value of the case. After the lawsuit is filed you will be known as the “Plaintiff” and the at-fault driver will be known as the “Defendant.” The filed Complaint and Summons are then served through the Sheriff, or via certified mail as required by statute. The Sheriff typically charges around $30 to serve the Complaint and Summons to the Defendant, while the private process server charges around $75 to $100 to attempt service. The insurance company is also served with the Complaint and the Summons by certified mail. After the insurance company receives the Complaint and the Summons, they will hire a defense attorney.
After the Defendant is served, he has 30 days to serve an “Answer” to the Complaint through his attorney. This 30 day period can be extended by an additional 30 days when requested by the defense attorney. All together, the Defendant will have 60 days to respond with an Answer to the Complaint. In the Defendant’s Answer, he or she will either deny or admit allegations that were presented in the Complaint. The Defense may also raise certain defenses to the Complaint’s allegations.
A responsive pleading called a “Reply” has to be filed within 30 days of receiving the Answer, if defenses are raised. After the Complaint, Answer and Reply are completed, which will take a minimum of 90 days, the case moves on to the “Discovery” phase of the lawsuit.
The Discovery Phase allows both sides to “discover” information about the other party, including possible claims and defenses. Discovery can take anywhere from four months to over a year to complete. There are four main ways to discover information:
- Requests for Production of Documents
- Requests for Admissions
The four tools of discovery are available to both parties of the lawsuit. Your attorney will use these tools to build your case in preparation for trial. Keep in mind that the Defendant will also have the same benefits provided by the tools of Discovery.
- Interrogatories: Interrogatories are written questions requesting specific information about the case. You cannot ask more than 50 interrogatories. Your attorney has 30 days to answer any Interrogatories presented by the Defendant. Typically the Defendant will ask unanticipated questions. When your lawyer receives the questions from the Defendant he or she should send you a copy and ask that you return your answers within 10 days. It is important that you return your answers to the interrogatories quickly because the court sets strict deadlines for answers to be returned. If the Interrogatory answers are not returned on time, the Court may require you to pay the Defendant’s costs and attorney’s fees.
- Requests for Production of Documents: Like interrogatories, these are also written questions, but they ask specifically for certain documents. Your attorney has 30 days to answer Requests for Production of Documents questions so it is very important to return your answers and documents promptly.
- Requests for Admissions: Again, these are also written questions, but with more direct answers. Requests for Admissions require you to simply admit or deny certain facts. Depending on how much information your lawyer has received through the discovery process, he or she may be able to answer these Requests for you. Should your attorney need you to answer these questions, you will have 30 days to answer. This deadline is extremely important, because for every question that goes unanswered, the court will deem it to be admitted. One question going unanswered could seriously affect your case.
- Depositions: Depositions are questions asked of you, under oath, by the defense attorney. The defense attorney will want to take your deposition at some point during discovery and you are required to attend. The deposition will typically be held in your attorney’s office and he or she should be present with you. Depositions may last a couple of hours and will be recorded by a court reporter and written into a transcript. The transcript can be used in the trial if your testimony changes. Your attorney will meet with you before the deposition to ensure that you are well prepared and comfortable with the questions that will be asked of you. Depositions may cost around $250-$750. Your lawyer may also require a deposition be taken of the Defendant.
Next, the parties sit down and attempt to settle the case in Mediation or Arbitration without going to trial. Mediation and Arbitration are forms of alternative dispute resolution. In Mediation, an independent and unbiased mediator will attend to discuss settlement and try to resolve the dispute. It is mandatory that you as the Plaintiff attend the Mediation. Mediation can last several hours or can take all day. This process can also be expensive, costing around $400 along with a high hourly fee charged by the independent mediator. There is no guarantee that your case will be settled in Mediation. The next step after Mediation is a jury trial. Arbitration is also a legal technique outside the court, but is only between the parties to the suit. Arbitration is mandatory for District Court in many counties. If an agreement is reached in Arbitration, the parties may be bound to the decision and the decision is legally enforceable.
A jury trial is the last phase of your case. Your court date is set by the judge and can take a great deal of time to schedule. It can also take a long time to get your case heard by a jury. Your case may be scheduled, but if other cases take longer than expected, your trial will be postponed. You must be prepared for the jury trial from the scheduled trial date through the actual date your case is tried. It is mandatory that you are present during your jury trial. It can last anywhere from two to five days, sometimes even weeks, based on the complexity of the case.
The risks to you can be great if you choose to pursue a lawsuit. If you lose your case or receive a verdict of less than what you bargained for, you are still responsible for the above listed costs. If you lose your case, the court may order you to pay for the Defendant’s attorney’s fees. Remember that there is no guarantee as to what a jury will decide. Many jurors are biased against people who bring a lawsuit against another person for personal injury. With these things in mind, many insurance companies often deny claims to force people into court without a guaranteed outcome.
As mentioned, filing a lawsuit can cost a great deal of money. The following is a breakdown of the average costs of a lawsuit:
Filing Fee (Complaint) $150.00
Service Fee (Summons) $15.00
Depositions (Discovery) $450.00
Expert Witness $1,000.00
These costs are a conservative estimate. Keep in mind that the bill is owed regardless of whether you win or lose your case. There is no guarantee that you will win in a jury trial.
It is very important that you are aware of the serious nature of your case. The Court will take any neglect seriously and failure to cooperate in the lawsuit may result in monetary sanctions. Your utmost attention is essential when you file a lawsuit. If you cannot be 100% involved in your case, you should reconsider pursuing a lawsuit.
Please remember to be patient with your case. The courts are clogged with cases like yours, and you will not see a speedy resolution. At Wallace Pierce Law, we strive to keep our clients well informed and at ease throughout the litigation process.