When you’re hurt in a car accident in North Carolina, many people think hiring an attorney to represent you implies that you’ll be in a court at some point. But how often do car accident injury cases really end up in court, and what does a personal injury attorney do when that happens? Here’s how it works.
What Does a Trial for a Car Accident Lawsuit Look Like in NC?
Most of the time, your personal injury attorney won’t even need to file a lawsuit. The vast majority of claims made to insurance companies are settled. If you are looking at the prospect of having to file a lawsuit against someone in a personal injury matter, it likely means one of two things. Either the person’s insurance company has denied their insured is legally responsible for your injuries, or there is a significant disagreement as to the value of your case. Don’t fret as there is good news.
Of the cases when a lawsuit is actually filed, U.S. Government statistics show that only about 5% of personal injury cases go to trial. The other 95% tend to settle at some point between the filing of a complaint with the court and the actual jury trial. While experienced trial lawyers enjoy the litigation process, to the average personal injury plaintiff, the process can be best described as long.
It takes, on average, between twelve (12) to eighteen (18) months for a case to reach the trial stage depending on your jurisdiction. The purpose of this blog is to introduce you to the various stages of the litigation process. These are 1) Pleadings Stage 2) Discovery Stage 3) Mediation Stage and 4) The Trial.
Pleadings – Stating a Claim
This is how a lawsuit starts. The Plaintiff’s attorney files the Complaint with the Court. Then it’s served to the Defendant. The Complaint itself is a rather formal document in language and format, setting forth the legal and factual basis for the lawsuit.
The Complaint will tell the Defendant why they are being sued through a series of allegations that the Plaintiff’s attorney believes they will be able to prove through evidence at trial. The Complaint needs to state any reasons why the Defendant is liable for your injuries so that the Defendant can respond to them.
Once the Defendant has been served with the Complaint, most commonly by the Sheriff’s office or by certified mail return receipt requested, the Defendant(s) has 30 days to respond. This is usually done via a document called an Answer. It’s not unusual for the Defendant to request, and be granted, an extension of 30 days in which to formally respond to the Complaint.
Like the Complaint, the Answer is a formal legal document both in its language and format. Within the Answer, the Defendant will usually respond to each and every allegation of the Complaint by admitting or denying each allegation made. Additionally, the Defendant will state reasons why he or she does not believe they are legally responsible for Plaintiff’s injuries. It may even assert its own claims against the Plaintiff, called counter-claims, which the Plaintiff would have to formally respond to as well.
Discovery – Making the Case
Discovery is the pre-trial stage in a lawsuit when each party investigates and tries to establish the facts of the case. This is done through the rules of civil procedure. Both sides obtain evidence from the opposing party and wherever else it can be found. This is accomplished using “discovery devices.” That’s a fancy name for “asking for things.” A few examples are requests for answers to interrogatories, requests to production of documents and things, requests for admissions as well as depositions.
Typically, each party will serve discovery requests on the opposing party with the initial pleadings referenced above. Occasionally, these requests will be sent shortly thereafter. Each party will generally have thirty (30) days to respond, but as a matter of course will request and be granted an extension of thirty (30) additional days in which to respond.
During that time, the Plaintiff and Defendant will meet with their counsel to provide answers and documents to respond to the various requests. The attorney will then finalize those answers and provide to opposing counsel in a timely manner. The terminology gets a little complicated if you’re not an attorney, but here are some terms you’re likely to hear and what they mean.
Interrogatories are open-ended, written questions to the opposing side. They’re used to gain information regarding the case. For example, one may ask the other party to identify any and all evidence they will rely upon in support of their claim or defenses. Interrogatories can become very complex with multiple sub-parts, so most jurisdictions limit the number of interrogatories either party can ask of the other.
Requests for production are arguably the most useful of the discovery tools. They allow one party to ask the other to provide documents or other tangible evidence, even electronically stored information. In addition, a request for production allows you to seek similar information from non- parties (people other than the Plaintiff and Defendant) by way of subpoena.
Requests for admissions ask another party to admit or deny certain carefully worded questions. For example, one party may ask the other to admit certain facts related to an automobile wreck that may tend to prove that party’s liability or responsibility. These questions are used to narrow down the issues of fact truly in dispute in the matter.
Once the written discovery is complete, the parties will schedule depositions. Depositions are the process of taking live testimony from witnesses and parties before a trial. The witness or party is required to appear (usually in their own attorney’s office) and testify under oath before a court reporter, who records the entire proceeding. While the testimony and questioning are governed by the rules of evidence, there is no judge present and counsel will note any objections for the record to be dealt with at such time the testimony seeks to be introduced at trial. An experienced personal injury attorney will prepare you for your testimony ahead of time to make sure you are comfortable and prepared for any questions you may receive.
Mediation – Can We Come to Terms?
A mediation is when the parties to a lawsuit and their attorneys sit down with a neutral third party, called a mediator, and work towards resolving the case, if possible. Also present at the mediation is the insurance adjuster.
The mediation occurs after the facts of the case are largely established but prior to trial. This is really one of the last times that the Plaintiff will have an opportunity to choose how his or her case will be decided.
The mediator is almost always an attorney who typically doesn’t know anything about the case. The format is simple. The mediator will do a brief introduction of the parties and participants, explain his or her role, and establish how the mediation will proceed.
As the Plaintiff, your attorney will give a presentation to the mediator and the other side regarding the strengths of your case. The insurance company’s defense attorney will do the same from his or her clients’ perspective. Expect for the opposing side to make statements that you will strongly disagree with. It will happen.
After each side makes its opening presentation, the parties will separate with one party moving to another room. The mediator will then meet with each party privately to learn more about each party’s case and find a way to help the parties reach some sort of compromise. The mediator will use the information he or she has learned from each party, except any information received in confidence, to help each side to see something about their own case, whether good or bad, they have not yet seen or appreciated.
This back and forth by the mediator continues while the parties negotiate and feed, through the mediator, information, arguments and offers to the opposing side until the matter is settled or until an impasse is reached. Occasionally, a case may require the parties to reconvene for a second session. If a settlement is reached, the parties will sign a binding document advising the court that the case has been resolved and what the terms are. If an impasse is reached, the mediator will notify the court and the parties will make final preparations for the trial.
The Trial – Your Day in Court
The trial is the culmination of all of the work done on your case. The very first thing that happens on the first day of trial are pre-trial motions, or motions in limine. These are motions by either side seeking to either exclude certain testimony or to limit the issues for the jury to decide. A common motion by the insurance defense attorney would to exclude any references to liability insurance in the presence of the jury.
After the motions in limine, there may be any number of housekeeping matters the judge may want to discuss with the attorneys, including checking once more to see if the parties can reach an amicable settlement prior to trial.
The next order of business is picking a jury. This is also called the voir dire (pronounced vwar DEER). Voir dire is where both attorneys, as well as the judge, will question members of the jury pool to determine whether they are suitable to serve as jurors on this particular case. Each side has a certain number of potential jurors they can remove for various reasons. For example, an experienced trial attorney would likely not want a jury member who is an insurance adjuster. Conversely, the insurance defense attorney would likely not want someone on the jury who had been injured by a negligent driver and had to resort to filing a lawsuit. Once the jury (usually 12 people and an alternate) is chosen, the judge will give instructions regarding how to govern themselves throughout the course of the trial.
Next come the opening statements. The opening statements are when the attorneys outline for the jurors what the case is about and forecast what they believe the evidence will be. Typically, the Plaintiff’s attorney goes first, as he or she has the burden of proving his or her case to the jury.
Once both sides give opening statements, the Plaintiff’s side will call its witnesses. During this phase of the trial, the Plaintiff’s attorney will question each witness to solicit testimonial evidence used to support the case that is being made. The testimonial evidence is also used as the foundation to introduce documents and other exhibits to the jury as well. This is called the direct examination of a witness.
After the Plaintiff’s attorney completes his or her examination of each witness, the Defense attorney will get to cross-examine each witness. An example of a list of witnesses that may be offered by the Plaintiff would be: the Plaintiff, police officer, any witnesses to the collision, Plaintiff’s doctor(s) and maybe a friend or family member of the Plaintiff who may testify about the Plaintiff’s injuries and how they may have impacted him or her.
Once the Plaintiff has finished questioning witnesses and introducing evidence, the Defense has an opportunity to examine witnesses and introduce evidence if they choose to do so, and counsel for the Plaintiff will have an opportunity for cross-examination. Throughout the questioning of witnesses and introduction of evidence, the lawyers may occasionally object to a question or a response or a particular document and the judge will need to rule on whether the material objected to can be considered by the jury. Under some circumstances, certain objections to evidence (testimonial or otherwise) will need to be argued outside of the presence of the jury.
Once both sides have concluded examinations of all witnesses, the jury will usually take a break and return to the jury room while the judge and attorneys conference to determine what jury instructions are appropriate based on the admitted evidence received during the course of the trial. Once completed, the jury is returned to the courtroom and closing arguments begin.
The closing arguments are speeches made at trial after all the evidence has been presented. Each side reviews and summarizes the evidence presented at trial in the light most favorable to the side making the argument. This is the last time the attorneys will be able to speak to the jury prior to a verdict, so they are a pretty big deal. During the closing arguments, an experienced personal injury lawyer will passionately and persuasively explain why the verdict should be in favor of the Plaintiff.
Following the closing arguments, the judge will instruct the jurors on the questions that need to be answered as well as the applicable law that will govern their deliberations. Once complete, the jurors will return to the jury room, choose a foreperson and begin deliberations. Deliberation times vary. They can be as short as maybe 30 minutes or as long as several days depending on the magnitude and the complexities of the case, as well as the level of disagreements between the various jurors. The verdict must be unanimous.
When a verdict is reached, the foreperson informs the Bailiff, who informs the judge, who will then notify the parties. Once the parties are seated in the courtroom along with the judge, the jury members will return to their seats. The judge confirms that a verdict has been reached, and the clerk will publish the verdict by reading aloud. With the verdict published, the jurors are thanked and dismissed. The verdict essentially ends the lawsuit, except in the rare case where the losing party wishes to, and has legal grounds for, an appeal.
An Experienced North Carolina Personal Injury Attorney Willing to Go the Distance
When you’ve been injured in accident, you have to understand that the insurance company wants to give you as little as possible – that’s how they make a profit. It’s not personal to them. For you, who could be in a lot of pain, with mounting worry and medical bills, it IS personal.
You want an attorney who is ready and willing to fight for you, including going to trial. If you’ve been injured, our attorneys are willing to go the distance. Contact the Law Offices of James Scott Farrin at 1-866-900-7078. We’ll listen to you, evaluate your case, and explain your options free of charge. Tell them you mean business!