The litigation process can be stressful, confusing, and filled with words not used in everyday life – depositions, mediations, interrogatories, subpoenas. One way to minimize these negative aspects of litigation is to understand the process. While every case has its unique aspects, here is a general overview of the typical lawsuit in North Carolina:
- Filing the lawsuit. The party filing the lawsuit is called the “plaintiff.” The plaintiff will prepare a document called a complaint that identifies the at-fault party as the “defendant,” and explains what the defendant did or didn’t do, and why the plaintiff is entitled to recovery. For most civil cases, the form of recovery sought by the plaintiff is money, but it can also be for the return of property or to require the defendant to do something. The complaint will get filed with the clerk of court for the county in which the plaintiff wants to sue in, which is typically where one of the parties resides or does business, or where the incident giving rise to the lawsuit happened.
- Serving the lawsuit on the defendant. Once the lawsuit is filed, it must be served on the defendant, along with a copy of the summons. In order to prove that the lawsuit was properly served, the plaintiff is required to serve the summons and complaint by Sheriff, by certified mail, or by a national delivery service (such as Fed Ex). If the defendant is a company, they are typically served by serving the summons and complaint on the registered agent, which for North Carolina companies can be determined by going to the NC Secretary of State website. Once the defendant has been served, they have 30 days to file a formal, written response to the lawsuit called an “answer” with the clerk of court. If they fail to file a formal response (or request and obtain an extension) the plaintiff can ask the court to enter judgment in their favor by way of a default judgment.
- Once the defendant has filed an answer, the parties are permitted to engage in “discovery” in order to learn about their opponents claims and defenses. In general the parties are allowed broad leeway in the information they seek from their opponent. The rules say that parties are allowed to seek any information that is reasonably calculated to lead to the discovery of admissible evidence. There are several tools the parties can use to aid them in this process:
Interrogatories. These are simply written questions that one party sends to the other that must be answered under oath. They are useful to learn basic information, such as dates, witness names and contact information, and so forth.
Document production. The parties are permitted to ask for various documents that may be related to the case. Depending on the case these can include documents such as medical records and tax returns.
Depositions. A deposition is an informal proceeding conducted by the question and answer method, under oath. All parties to the lawsuit and their attorneys have the right to be present during a deposition. The questions are asked by the attorneys, and the questions and answers are recorded by a court reporter. Usually, the depositions are taken in the lawyers’ office. They can range from a couple of hours to a couple of days depending on the complexity of the case. Typically before a deposition is taken your attorney will meet with you to prepare you for the deposition. It is important to be well prepared for a deposition, because your testimony during a deposition can be used at later proceedings and at trial as evidence.
Subpoenas. The parties can also obtain documents and testimony from third parties who may have important information related to the lawsuit. This is typically done by serving a subpoena on the party, who then must produce the documents or testimony or be subject to sanction by the court.
- Dispositive motions. The defendant (and sometimes the plaintiff) will typically try to shorten the lawsuit process by asking the court to decide the entire case in their favor. This is typically done by filing what is called a motion for summary judgment. To win such a motion you have to show that there are no material facts in dispute and, as a matter of law, you are entitled to judgment in your favor. As a general matter judges are reluctant to grant such motions, but they are nevertheless an important part of the process and can be an important tool in the overall litigation strategy.
- The vast majority of civil lawsuits filed in North Carolina settle before trial thanks in large part to the mediation process. All superior court cases in North Carolina are ordered to go through mediation before trial. Mediation is an informal meeting where both parties work with a mediator in an effort to settle the matter. It usually takes place at one of the lawyer’s offices. All parties (and their lawyers) are required to be at the mediation. The mediator is an independent lawyer or retired judge selected by the parties to facilitate settlement discussions. After a brief introduction to the process and a summary of each side’s position by the attorneys, the mediator will split the parties (with the lawyers) into separate rooms. The mediator will then meet separately with each side in an attempt to resolve the dispute.
- If mediation fails the case will be tried. If either side has requested a jury trial, the case will be decided by a jury. Otherwise, the parties can agree to have the case decided by a judge in what is known as a “bench trial.” Trials can range from a few days to weeks, depending on the complexity of the case.
The entire process described above often takes a year or two before the case is resolved. For that reason, we typically advise clients to think long and hard before choosing the litigation route. Unfortunately, sometimes it is the only option available.