Most civil cases settle before going to trial. It is estimated that 95% of personal injury cases resolve prior to trial. In the majority of personal injury cases, the injured party (or his/her lawyer) comes to an agreement with the person who caused the injury (or his/her insurance company and/or lawyer). However, sometimes settlement is not possible and a lawsuit must be initiated. Before a plaintiff can tell his/her case to a judge and/or a jury, there are numerous procedural steps that must occur. The basis of any lawsuit is documents, known as pleadings. Pleadings set forth the parties positions in any lawsuit.
Before filing any pleadings, the injured party, or plaintiff, will need to take a few steps. First, a plaintiff needs to understand the statute of limitations applicable to his/her claim. For example, a plaintiff bringing a personal injury claim in North Carolina would need to know that generally they have to file within three years of the injury. They should also know that there are exceptions to any statute of limitations: for example if it was a car accident claim that resulted in death, a 2 year statute would be applicable.
Second might be deciding which court to file in - state or federal. For example, a plaintiff injured in a car accident in Charlotte, North Carolina, will, in most cases, file their personal injury claim in North Carolina state court. There are times when a car accident case can be filed in federal court. For example, if the plaintiff was a resident of North Carolina and the defendant was a resident of Georgia, then the plaintiff might choose to file his/her claim in federal court. An experienced attorney can advise as to the best forum to bring a claim.
Both parties must also know that they are bound by Rules of Civil Procedure.These rules govern and ensure that the same procedure is being followed in every case. There are Federal Rules of Civil Procedure as well as state rules. The North Carolina Rules of Civil Procedure govern the court process in North Carolina.
Part 1 of this series examines the pleadings that are filed at the beginning of a lawsuit.
The Complaint is typically the first pleading to be filed, it starts the case. The complaint is filed by the plaintiff and sets forth the reason for the lawsuit. It should contain the name of the party, or parties, that the claim is against, the facts, a statement of the law, the injury sustained and the damages.
The Complaint is a chance for the plaintiff to give his/her side of the story at the beginning of the case and set the tone for the case.In a North Carolina personal injury case, the plaintiff typically files in state court in the county where he/she lives or the county where the injury took place. The complaint must follow specific requirements, set forth in Rule 8(a) of the North Carolina Rules of Civil Procedure, including a statement of the claim and a demand.
The answer is the defendant’s chance to either agree with or deny the allegations set forth in the complaint. A defendant can deny the plaintiff’s allegations and explain their side of the story in response to those allegations.
An answer is often the next pleading filed with the court but not always. Defendants can also file a counterclaim. In North Carolina, which follows the strict liability doctrine, a counterclaim might allege that the plaintiff was partially or completely at fault, which could negate the defendant’s liability.
Discovery is the tool that both parties use to get information from each other about the information contained in both the complaint and the answer; it is a time for both parties to gather evidence to prove their case. Discovery provides both sides with valuable information and can help to convince one or both parties that it might be best to settle before going to trial. Discovery includes:
- Interrogatories. Both parties develop written questions and send them to the opposing party. The opposing party must answer them truthfully, they are under oath. Interrogatory questions in a car accident case might include questions about the car accident, what injuries were sustained and if there are any lingering effects from the injuries.
- Request for production of documents. These are written requests by both parties for documentary evidence necessary to prove their case. In a car accident case, examples would include requests for emails, photographs of the scene of the accident, injuries and any damage, police reports, written witness statements, medical records
- Request for admission. These are often used as a way for each party to see what the other party will agree, or admit to. If admissions can be agreed upon, then a judge or jury will not have to consider, or make any determinations about them, they will be accepted as fact. For example, in a car accident case, both parties may agree that an accident occured on a particular date or at a particular time.
- Depositions. During a deposition, the parties record oral testimony. The plaintiff and defendant will be deposed along with other parties who have relevant information. In a car accident case for example, a witness at the scene or doctor who can testify to the plaintiff’s injuries might be deposed. The lawyers for each party are given a chance to ask the deponent questions. A court reporter will be present to record the testimony and it is taken under oath. Testimony elicited at a deposition can be used to impeach, or contradict, the deponent at trial.
Parts 2 and 3 of this series examine pleadings called motions, which are typically filed once discovery has begun.
If You Considering Filing a Lawsuit Our Charlotte Attorneys Can Help
If you are considering filing a lawsuit you should speak with an attorney to understand the legal process and to determine the likelihood of successfully recovering damages. The Charlotte NC based lawyers at Rosensteel Fleishman, PLLC are experienced personal injury attorneys who can help. Please contact our office at 704-714-1450. There is no fee for an initial consultation