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Legal Information - Filing a Lawsuit in North Carolina
A lawsuit generally begins with the filing of a complaint and the issuance of a summons. The complaint explains the grounds for the lawsuit. It outlines the injury or damage you as the plaintiff have suffered, the names of the persons you believe are responsible called the defendants, and the type of relief you are asking the court to impose.
The clerk of court then issues a summons which is a legal notice informing the person or persons you named as defendants that legal action has been commenced against them. The summons is served on the defendant by having it delivered by a sheriff or other law officer or by mailing it by certified mail.
The defendant then must file an answer in response to the complaint with the court by a date specified. In this answer, the defendant may deny the plaintiff's allegations entirely and/or assert defenses to the plaintiff's claim. An example of a common defense in North Carolina is the defense of contributory negligence. This defense states that your own negligence contributed to the accident or injury. In North Carolina if a defendant successfully proves that you were contributorily negligent, then you do not recover anything from the defendant. Often the defendant’s answer will also contain a motion asking the court to dismiss the case for failing to state a cause of action.
The defendant may also file a counterclaim in his answer. A counterclaim may state that the plaintiff ‘s actions resulted in damages to the defendant. As an example, if the plaintiff’s complaint alleged the defendant was negligent in running a red light and causing a collision with the plaintiff, a counterclaim might state that it was the plaintiff that actually ran the red light, and that this negligence was in fact the cause of the accident and the defendant’s damages.
If the defendant fails to file an answer to the complaint, this failure will most likely result in the court entering a default judgment against the defendant.
Once the defendant files his answer, the discovery process begins. The discovery process involves the exchange of evidence between the parties. It is also used to prevent either side from being ambushed by unrevealed facts or unidentified witnesses.
During the discovery process, each party can use depositions (the oral questioning of a party or witness under oath) and interrogatories (written questions that must be answered in writing also under oath). Also request for admissions may be utilized to request a party admit to some important fact. In all cases a request for production will also be made by one party to request that the other produce documents such as medical records and bills. If the party receiving the request refuses to turn over the documents, the requesting party may ask that the court compel the other party to produce the evidence. Failure by the party to then follow the court’s order will result in severe sanctions against that party.
All cases filed in North Carolina state court are required to go through court ordered alternative dispute resolution. Depending on the amount in dispute, the parties may go through arbitration or mediation. Arbitration is a process where a neutral arbitrator conducts a hearing of the evidence and issues an award. This arbitration ruling is appealable by either side, and if it is appealed, the case goes on toward trial. Mediation is a process where a neutral mediator listens to the evidence and then tries to help the parties reach resolution of their dispute. A mediator has no power to issue a decision in the case. If the mediation is unsuccessful, then the parties continue toward trial. Many cases settle at this stage of the process.
A pretrial conference with the presiding judge may be held in order to allow both parties to discuss the issues in the case. This conference is usually held the week before the scheduled trial. Pretrial conferences are utilized to decrease delays in trial proceedings. Often settlement negotiations resume at this stage and a case may be resolved. However, if the case cannot be resolved, the case proceeds to trial.
At the trial, each side will have an opportunity to question the persons who will ultimately serve on the jury. Once the jury is impaneled, each side makes an opening statement. It is the plaintiff’s burden to prove each and every element of his claim and, as such, the plaintiff goes first in giving an opening statement and then in presenting his evidence. This evidence will generally consist of the calling of witnesses and the presenting of documentary evidence. In most civil cases, the plaintiff must prove its case by a standard known as "a preponderance of the evidence." This means that the plaintiff must prove that more likely than not the defendant was negligent and that his negligence was a cause of the plaintiff’s damages.
When a witness is called by the plaintiff’s attorney, the attorney has an opportunity to conduct a direct examination of that witness. After the attorney is finished, the defendant’s attorney may then conduct a cross-examination of that same witness.
Once the plaintiff has presented all of his evidence, the defendant then will present his case to try to refute the plaintiff’s allegations. Of course, the plaintiff’s attorney will have the opportunity to cross-examine any of the defendant’s witnesses. After the defendant has presented his case, the plaintiff has the right to present rebuttal evidence.
Each side then gets to make a closing statement which summarizes its arguments and asks the court or the jury to provide a favorable judgment. If a jury trial has been conducted, the judge will then give the jury instructions on the law and how it is to be applied to the facts of the case.
The jury then begins to deliberate the outcome of the case until it reaches a verdict or becomes deadlocked. If a verdict is returned, the losing side may decide to appeal the decision to a higher court. Ordinarily, most cases are not appealed.
If you are faced with the prospect of filing a lawsuit, you should always consult with an experienced attorney. An attorney can best assess the situation and give you an analysis of the time, risk, and expense factors involved in litigating your case.
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