As part of my litigation practice, I represent both plaintiffs and defendants in civil cases. Most of my clients have never been a party to a civil lawsuit. Their lack of experience with the litigation process means they often do not know what to expect—not only in terms of time and expense, but also in terms of the litigation process. What are interrogatories, you might ask? Or how about a deposition?
It’s my job as their lawyer to set expectations, so any surprises are kept to a minimum. I offer this blog post as a guide for the newcomer to civil litigation. Maybe you are a client (or a potential client) of our firm—and you’re wondering what it means to file a lawsuit. This guide will not cover every wrinkle but should help you walk away with a better idea of what may be to come.
Unfortunately, lawsuits typically take twice as long and cost twice as much as you may predict. Perhaps for that reason most civil lawsuits resolve by a voluntary dismissal, or mutual settlement between the parties.
If the parties do not agree to settle a case, then the plaintiff—like the pitcher in baseball—can win by striking out the defendant. A defendant has three pitches, or opportunities, to hit a home run and defeat a lawsuit:
- a motion to dismiss;
- a motion for summary judgment;
Since our firm is based in Charlotte, I will use the Mecklenburg County courts as a guide. The local procedures vary among counties in North Carolina, and the rules also are different for federal courts.
Here’s the most important lawsuit basics for Charlotte, North Carolina.
- Small Claims vs. District Court vs. Superior Court
- Filing and Serving the Complaint
- Default Judgment
- Strike #1: Filing an Answer (or Motion to Dismiss)
- Alternative Dispute Resolution
- Strike #2: Motion for Summary Judgment
- Strike #3: Trial
Small Claims vs. District Court vs. Superior Court
Before filing a complaint, a plaintiff must first decide which court should hear your case. The North Carolina courts are broken down into two primary divisions, based on the amount of money in controversy: district court for cases up to $25,000, and superior court for cases above $25,000. (Small claims courts also hear cases up to $10,000, and there is a separate business court for complex disputes.)
The procedures for each division—and what to expect—vary significantly between the courts. For purposes of simplicity, this blog post will focus on the procedures for superior court, with differences noted for district court.
Costs: filing fee paid to the court, varies depending on the division ($96 for small claims, $150 for district court, and $200 for superior court).
Filing and Serving the Complaint
A lawsuit formally begins with the filing of a complaint and the issuance of a summons. The complaint includes numbered paragraphs, each of which includes a separate allegation made by the plaintiff. The summons is the court’s formal notice to the defendant to appear in court.
The U.S. Constitution requires “due process,” meaning that a defendant must be provided with notice of the lawsuit against them and an opportunity to defend the lawsuit in court before a judge or jury. A plaintiff must serve the summons and complaint, according to strict rules.
The Mecklenburg County sheriff is the first option for serving a defendant. The sheriff will deliver a copy of the summons and complaint to the defendant. If the sheriff is unable to find the defendant, a plaintiff can hire a private investigator or other person authorized by law to serve process. Another common method is to serve the defendant by certified mail with signature proof of delivery. Serving a defendant can be a tricky process—especially if the defendant lives outside of Mecklenburg County.
Costs: The sheriff’s department charges $30 per defendant to attempt service. The fees for service from a private investigator range from $75 to hundreds of dollars.
Once properly served, a defendant must answer the complaint within 30 days. A defendant who does not show up in court within the allowed time suffers the same consequence as a sports team who does not show up for a game—they forfeit or lose the lawsuit “by default.”
A plaintiff can be awarded a default judgment against a defendant through a two-step process. The court first must determine that the defendant was properly served and did not appear—and “enter default” against the defendant. The second step requires that the plaintiff present some evidence to prove their case and the amount of damages they have suffered. Because the defendant has not appeared, the plaintiff’s sworn testimony and documents are the only evidence considered by the court. Depending on the case, the clerk of court or a judge enters “default judgment” against a non-appearing defendant.
Timing: a default judgment can be secured within two to five months of the filing of a complaint, depending on the circumstances.
Strike #1: Filing an Answer (or Motion to Dismiss)
A defendant who appears must file an answer to the complaint, that is, by admitting or denying each of the numbered paragraphs in the complaint.
Another option for a defendant is to move the court to dismiss the lawsuit. There are several arguments a defendant can make, most frequently that the plaintiff has “failed to state a claim upon which relief may be granted.” In other words, a defendant can argue that even if you accept as true each of the allegations in the complaint, the plaintiff still loses in court. This is a very high bar for a defendant to clear. Judges are disinclined to throw out a case before any evidence is presented to the court. Most plaintiffs will clear this hurdle, and the case will move to the discovery stage of litigation.
Timing: expect a defendant (who is represented by a lawyer) to extend the deadline to answer the complaint from 30 days to 60 days.
Litigating a civil lawsuit is a bit like playing poker with open-faced cards. “Discovery” is the process for turning over the opposing party’s cards to see what they’re holding. The discovery process favors openness and transparency, with the idea that each litigant has a right to gather evidence to support their claims. This open discovery process also can encourage the early settlement of cases—both sides now exactly what cards the other is holding well before trial.
On the flip side, the privacy of litigants is a casualty in this process. The decision to sue (or be sued) is the decision to open your life to inquiring lawyers. I find that my clients often are surprised at what the other side may be entitled to—whether bank statements or medical records. The opposing party is permitted to discover evidence beyond what’s admissible at trial. The standard is whether the sought-after evidence is reasonably calculated to lead to admissible evidence.
The discovery process can be broken down into two sub-parts: written discovery and depositions.
Written discovery includes a series of tools and procedures for gathering documentary evidence. The three most common tools include interrogatories, requests for production of documents, and subpoenas.
- Interrogatories are a fancy-sounding name for written questions that must be answered under oath. Each side can ask 50 interrogatories of the opposing party.
- Requests for Documents are just what they sound like and require you to produce documents in your possession or control. In today’s modern world, electronically stored information (ESI) can present challenges that were a non-issue a couple decades ago. Remember that everything you put in writing (think: text messages) can be discovered by the other side if it relates in any way to the case. There is no cap on the number of requests for documents that may be asked by the other side.
- Subpoenas are like requests for documents but are sent to third parties (who are not part of the litigation).
Timing: Each party has 30 days to respond to written discovery requests, but those deadlines often are extended to 60 days.
Costs: Depending on the volume of documents, answering written discovery can be hugely time
Depositions are used to gather sworn oral testimony from witnesses.
A lawyer asks questions of a witness in a law firm conference room. The witness testifies under oath, and a court reporter takes down a transcript of every word that is said. Depositions can be a grueling all-day affair, or as short as an hour (or less). Within reason, a lawyer can ask as many questions as they have of the witness.
Calling the deposition of the opposing party can be a powerful tool for getting to the truth of the matter—much more incisive than written discovery. Lawyers draft answers to interrogatories on behalf of their clients, so they can be of limited use. (You also don’t get the chance to ask follow-up questions in real time with interrogatories.) By contrast, the lawyers cannot answer on behalf of the witnesses in depositions—and you get the added benefit of seeing the witness answer before you in person.
On the flip side, sitting for a deposition called by the opposing counsel can be an unpleasant experience. A good lawyer will ask question in a deposition that may be difficult to answer without damaging your case.
Depositions are rarely held in cases in the district court division because the amount in controversy does not justify the high expense.
Timing: The parties typically take depositions only after engaging in written discovery, in part so the interviewing lawyer can question the witness about documents gathered in the earlier stage of discovery.
Cost: Court reporters provide an impressive service, but at a significant price. An all-day deposition will cost more than $1,000 in reporting time and transcript fees.
Alternative Dispute Resolution: Mediation and Arbitration
Before any case goes to trial in North Carolina, the parties are required to participate in alternative dispute resolution (ADR). The idea is to encourage the parties to settle their cases without the use of scarce judicial resources.
Mediation is required for all superior court cases. A mediator is a neutral attorney selected by the parties. The mediator has no power to decide the merits of the case—they are a facilitator of negotiations whose sole objective is to guide the parties to a mutually acceptable resolution of the case. They have no horse in the race.
Mediations typically are held in a law office. The process starts with both sides meeting in a conference room for an opening statement. This is the one and only time (besides trial) where the parties must be together in the same room. The purpose of the opening statement includes educating the mediator on the issues of the case and to communicate your litigation position to the opposing party.
The parties then break out into separate rooms for the remainder of the session, and the mediator moves between the rooms as the parties trade settlement offers. It is not uncommon for the offers to be very far apart at the start of mediation, but to end the day with a deal. Mediations are a war of attrition and can be an exhausting all-day process. I recommend that my clients bring something to do to mediation—like a book to read. (There is extensive downtime when the mediator is meeting with the other party.)
Timing: Mediation typically takes place near the end of the discovery period, but the parties sometimes agree to mediate earlier in the case.
Cost: The parties split the cost of the mediator’s fee, which varies by mediator. A full-day mediation can be expected to cost each party around $1,000.
Arbitration is required for all district court cases. An arbitrator is a neutral attorney designated by the court, who has the authority to decide the merits of the case and enter an award in favor of either party. Arbitrations in district court last only one hour, and they have a bit of a Wild West character. The arbitrator’s award is non-binding, meaning if either side does not like the result, they can set aside the arbitrator’s award and take their case to trial.
Timing: District court in Mecklenburg County moves at lightning pace, with an arbitration hearing scheduled for within two to three months of the defendant’s answer.
Cost: $100 split evenly among the parties.
Strike #2: Motion for Summary Judgment
If your case does not resolve through the ADR process, either party can move for “summary judgment.” This is the second opportunity for a defendant to defeat a lawsuit.
All the discovery has been completed by the time a case gets to this stage. If one of the parties moves for summary judgment, the judge will hold a hearing and the parties will argue their case. A summary judgment hearing is an important inflection point in a case, as it’s the last hurdle for a plaintiff to clear before proceeding to trial.
The judge analyzes the evidence “in the light most favorable to the non-moving party.” For example, if the defendant moves for summary judgment, the judge will look at all the evidence in the light most favorable to the plaintiff. So, if the defendant says the stoplight was green when he drove through the intersection—and the plaintiff says the stoplight was red—the judge must accept that the stoplight was red for purposes of summary judgment.
It is not the job of the judge at this stage to decide who is telling the truth—that is a question of fact for the jury to decide. The role of the judge is to apply the law to the undisputed facts.
A judge will grant summary judgment in this example only if the defendant wins the case even if you tilt the evidentiary scales in favor of the plaintiff. In these cases, there is no need for a jury to decide who’s telling the truth—because even if the jury believes the plaintiff’s evidence, the plaintiff still loses “as a matter of law.”
This standard is not as difficult for a defendant as the earlier motion to dismiss. (Remember: at the motion to dismiss phase, the judge is not looking at any evidence—just the allegations in the complaint.) But so long as the plaintiff has some evidence to support their legal claims, the defendant cannot win on summary judgment—and the case goes to trial.
Timing: within two months from the trial date.
Cost: $20 in court costs to schedule a hearing, plus all of the attorney’s fees spent litigating the case to date (of course).
Strike #3: Trial
The final opportunity for a case to resolve is before a jury of your peers—or, in some cases, a judge. Trials in civil cases are exceedingly rare, with only a fraction of cases making it this far. It’s not uncommon for a case to settle a day before the start of trial—or even in the middle of a trial.
Ask any trial lawyer and they will tell you that the process of preparing for a trial is one of the most difficult parts of our jobs. Witnesses must be subpoenaed to testify, exhibits must be prepared, pre-trial motions must be drafted, etc.
It does not help matters that North Carolina follows an arcane and inefficient process for scheduling trials. Each case is assigned a week for its trial date. On the Monday morning of that week, the lawyers whose cases are set for trial all meet for a “calendar call,” where the judge decides which cases will be tried that week and when. Some cases towards the bottom of the list may get postponed to a later date. This makes trial preparation uncertain and difficult—and sometimes results in duplicating efforts. (Imagine, for instance, the challenges in coordinating the travel schedules for an out-of-town expert witness when you can’t predict when they will be needed to testify.)
Once called, a trial begins with “voir dire,” the process of examining potential jurors to
At the end of the trial, the jury is instructed on the questions it must answer to deliver a verdict. The jury’s verdict is the final judgment on the matter, unless the judge decides to step in and overrule the jury in what’s called a “judgment notwithstanding the verdict.” This happens only if the judge determines that no reasonable jury could have reached the given verdict.
At the end of this lengthy process, the real work begins. If not appealed, a judgment becomes final after 30 days. For a successful plaintiff, a judgment is only a piece of paper. Collecting on a judgment can be another matter altogether.
Getting paid by the defendant (at this point, the “judgment debtor”) requires that the plaintiff (at this point, the “judgment creditor”) to locate valuable assets and to use the sheriff and other legal means to seize those assets. Collecting on a judgment against an individual (as opposed to a corporate) judgment debtor comes with extra challenges—especially if the individual is married. A married person
Timing: the Mecklenburg County clerk of court (as of the date of this post) is scheduling superior court trials approximately eight months after the last defendant answers the complaint. That may not sound fast, but the wheels of justice elsewhere move much more slowly.
Cost: more than you care to pay.
If you are seeking legal counsel to file or defend a lawsuit, contact the civil litigation attorneys at Spengler & Agans.