PATIENCE, PATIENCE: THE LAWSUIT PROCESS IN NORTH CAROLINA

Patience, Patience: The Lawsuit Process in North Carolina

Often we will recommend to our clients that a lawsuit be filed when the other party is denying responsibility, dragging its feet, offering inadequate money to compensate for a wrong, or will not respond to our demands. Unfortunately, just filing the lawsuit will not speed up the process of having your dispute settled. The court dockets across our State are overloaded with cases waiting to be heard. The litigation process can be frustrating for attorneys and clients due to the amount of time and delays involved. Having patience is the best way to overcome the long and arduous journey to the courthouse.

It can take a year or more from the filing of your lawsuit to an actual trial date to get your case resolved, and sometimes even longer depending on the court docket. Also, there is a great deal of work to be done by both sides in a lawsuit which requires adequate time and effort.

A lawsuit follows a standard process in North Carolina. As Plaintiff's attorneys, we first file a Summons and Complaint with the Clerk's office. These documents must then be served on the Defendant by the Sheriff or by certified mail. Many times, obtaining service on the other party takes more than thirty to sixty days.

We are a transient society --- many people now change addresses often. If the other party cannot be found by the Sheriff's office or if the mail carrier cannot obtain a signature for the certified mail envelope containing the lawsuit papers at the last known address, we must run a notice of the lawsuit with a local newspaper. In accordance with the Rules of Civil Procedure, this notice must run for three weeks. Obtaining service of the Summons and Complaint can often extend the lawsuit process a great deal.

Once the other party is served with the lawsuit papers, the Defendant has thirty days within which to file an Answer to the Complaint, answering the allegations of the lawsuit. The Defendant's insurance company will hire an attorney. As per our Rules of Civil Procedure, which govern our Courts, the defense attorney may ask the court for an additional thirty days extension within which to file his Answer. This now gives the Defendant another thirty days on top of the original thirty days he has already been granted. The court recognizes this as necessary time for the attorney to meet with his client and prepare an adequate defense.

If the Answer states allegations against the Plaintiff, then a Reply to the Answer may need to be filed. This means additional time for filing more documents with the court. Although it may seem that this initial process has already delayed your lawsuit,

these early court filings are very important to your case and the ultimate posturing of your case. And it is important to recognize that no one has been given additional time to file documents. The extensions of time are granted by the Rules of Civil Procedure and followed by the clerk's office. The court well recognizes that the initial pleadings in a case do require sufficient time, research, and preparation by each side.

Once the Complaint, Answer and Reply (if necessary) are completed, then the lawsuit process moves on to the discovery phase. This is the phase of the lawsuit when both sides will have an opportunity to "discover" information about the other side. This phase generally takes six to eight months to complete. The information can be requested by written questions, or interrogatories, and by written requests for production of documents. The court allows thirty days to answer these questions or to produce the documents requested, but the attorney receiving the requests may ask for an additional thirty days to respond. The ultimate completion of providing all documents on each side may take more time.

Depositions are an important discovery tool and require additional time and effort. If you have filed a lawsuit, you can bet the defense attorney will want to take your deposition. It takes a good deal of our staff's work day to coordinate the scheduling of a deposition that is convenient to the multiple attorneys on each side and the parties themselves. If you are being deposed, your attorney will want to meet with you on a date prior to the deposition in order to prepare you. These preparations and scheduling take time, but are very important to the ultimate success of your lawsuit.

Once the discovery process is complete, then your case will move to Mediation. Again, scheduling takes time to coordinate all the lawsuit parties to have clear schedules for a certain date/time, plus all the attorneys, a court-approved mediator, and any insurance adjusters or other persons with authority to settle the case. Because Mediation is usually a good tool to settling your case before trial, a great deal of time and effort will be spent by your attorneys to prepare any documents or exhibits to be used. Often, mediation will last the better part of a day if there are concerted efforts on all sides to settle the matter.

If the lawsuit does not settle prior to mediation or at mediation, then you will need to be even more patient waiting for your court date. It is set by either the trial judge or the trial court administrator. Your case will be set for a particular week, but there may be several other cases ahead of yours. There is no guarantee as to a day certain that the trial will start. You may start on a Monday, or your case may not get reached until a Wednesday afternoon, or if may not get reached at all that week. Regardless, you must be prepared to be available the entire week for any week that you case is set for trial. The average jury trial lasts two to four days so you must be available for the entire trial.

There are many considerations you will want to discuss with your attorney prior to filing a lawsuit. One of the most important will be your decision to be cooperative with your attorney and abide by the time requirements of a lawsuit. Understanding that your case will be moved through the system as quickly as possible, but within the time constraints issued by the court and by our Rules of Civil Procedure, is vital to a successful settlement of your legal issues.

In spite of the process, going to court is the best avenue to resolve cases. It beats arbitration. The experience of going to court can be wholesome as a party gets their case heard by 12 of their peers.

H. Edward Knox is the managing partner with the Knox Law Center. He is a certified trial specialist, a member of the National Board of Trial Attorneys as well as a member of Legal Elite Hall of Fame (2003,2005, 2006) and NC Super Lawyers (2006,2007). Visit our website at www.knoxlawcenter.com. Please call 704-315-2363 or 866-704-9059 (Toll free). Opening soon is our newest office in Denver located at Hwy 16/73- Waterside Crossing.