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Back September 11, 2019

Practical Issues in Litigating Personal Injury Cases in North Carolina

North Carolina Personal Injury Litigation

While many injured parties revel at the idea of filing a lawsuit to hold those who injured them accountable, it’s important for potential litigants to understand aspects of the general litigation process in North Carolina from a practical standpoint so that their expectations are appropriately tailored to withstand a few or several potential obstacles, delays, roadblocks, and disappointments that they may encounter in litigation. It helps to be aware of some of these potential issues that may arise in your case so that things such as court delays, unfavorable juries, and bureaucratic errors are expected and not devastating when they happen. While some of these potential issues may sound troublesome and not worth a potential litigant’s time, it’s always important to evaluate your case and consult, free of charge, with one of our personal injury attorneys at Biazzo & Panchenko Law who have necessary experience with pushing through these obstacles and navigating around hurdles presented at trial to determine whether litigation is right for your case. Contact Biazzo & Panchenko Law today to schedule your free consultation with our Charlotte, and Matthews Personal Injury Attorneys.

Paper Filings

The practice of physically filing paper copies of lawsuits and other written pleadings with a clerk of court literally goes back to the beginning of time for North Carolina courts, when litigants dismounted their horses outside the courthouse to deliver court filings to a court clerk who would slam a physical ink stamp with the date, time and the word “FILED” onto those pleadings. This practice is still alive and well today in the 21st Century, albeit without the horses and saddle bags. While many states such as Florida and the federal jurisdictions have shifted to online, electronic filing systems that utilize PDF submissions, North Carolina courts continue to use paper filings. Whether the reasoning is to save the expense of implementing a lean electronic system or whether it’s so self-important bureaucrats can keep their cushy taxpayer funded jobs stamping paper behind a desk, the practice is bound to stay around for a while. You may be asking yourself, how might the paper filing system effect my case? The main reasons this system may impact your case is because it may result in delays in movement on your case when your attorney or their staff may take time from working on your case to deliver paper filings to the court. Paper filings may also result in increased litigation costs to account for postage used to mail written pleadings to the court, the cost of gas for a law firm’s staff to physically file pleadings in court and the costs of potentially hundreds or thousands of pages of paper and ink expended in your case. While these issues could be avoided with a statewide electronic filing system, don’t expect one to come into operation anytime soon. Other issues may also arise where you may be forced to submit written pleadings earlier than required so that the mail will deliver your pleadings to court by their required filing deadline. This can result in slightly rushed preparation of written pleadings.

Service of Process

Service of Process is another classic, longstanding potential hurdle that may impact civil litigants regardless of what U.S. jurisdiction an action arises in. Service of process is the official process of making a civil defendant aware of a lawsuit filed against them at a time that gives them advanced notice so they can adequately prepare a defense. In North Carolina, service of process can generally be accomplished by serving a summons and complaint on a defendant by United States Postal Service Certified Mail with a Return Receipt addressed to the Defendant that is signed and returned to the Plaintiff, by having the Defendant served with a copy of the summons and complaint by a sheriff process server in the county where the Defendant is located or resides, or by having a private process server serve a copy of the summons and complaint on the Defendant in the action. A final alternative method to accomplish service of process, although a frowned upon method, is service by publication which generally requires a plaintiff to post notice of the pending action in a local newspaper and run the ad for several consecutive weeks. For example, for 3 Fridays on 3 consecutive weeks. The idea is to give a defendant notice of a pending action in a place where they may observe the ad. However, the courts generally frown on this method of service and will usually only accept it after you have exhausted all other options. These rules are more granular in practice and you should consult with one of our licensed Charlotte and Matthews personal injury attorneys at Biazzo & Panchenko Law, on effectuating service of process in your case, especially if you are dealing with a company, out-of-state defendant, government entity or other potential defendants. In many instances, a defendant who is aware of the fact that they’re being sued or that they may be sued may take measures to avoid receiving service of process for as long as possible so that they can avoid or delay being held accountable, because they know that a court can’t issue any rulings against them until they have been served. This is because the Due Process Clauses of the U.S. Constitution prohibits state and federal courts from exercising personal jurisdiction over defendants unless the defendants receive proper notice of a court proceeding initiated against them. Because this is required by the Constitution, all jurisdictions have codified appropriate methods of accomplishing service that are in compliance with the due process clauses. North Carolina’s requirements are found in N.C.G.S. § 1A-1, Rule 4. Beware that service of process is a common issue that delays thousands of cases a year. Without accomplishing adequate service of process, your case doesn’t proceed past filing a complaint. While it’s a slight hurdle, one of our skilled personal injury lawyers can often find creative ways to properly effectuate service on an elusive defendant in North Carolina.

Extensions of Time

Generally, in North Carolina, when a party is sued and served with process, the defendant has to file and serve a written answer to the complaint on the plaintiff within 30 days of receiving service of the summons and complaint. If a defendant fails to answer the complaint in time, the plaintiff can move to have the court enter default in the plaintiff’s favor where the plaintiff can seek the relief sought in their lawsuit from the court through the default judgment process. In order to buy more time to file a response, defense counsel typically request extensions of time to respond to complaints and other pleadings. These extensions are typically for another 30 days, so this generally causes some delay in pursuing litigation.

Discovery

Litigation enables all parties in a civil action to conduct discovery before trial. In discovery, parties may take depositions of parties and witnesses, send interrogatories to parties which are written questions that are answered in writing under oath, requests for production of documents and requests for admissions which must also be responded to in writing under oath. While there is a scope of permissible discovery requests and boundaries on what is discoverable, be aware that even as a plaintiff, you may and will likely also have to respond to discovery requests from the defendant and their attorneys in your case or you may be required to comply with a subpoena. Be aware that filing a lawsuit could submit you to having to turn over information that you may otherwise like to keep private. However, always consult with a personal injury attorney to see what types of requests would be permissible and whether there is private information that you would like to remain private. Also note that the trial of your case will not begin until the period set for conducting discovery is over, so this process results in another delay for your trial. However, you may strengthen your case from the information you obtain through discovery.

Mediation and Arbitration

The courts in North Carolina generally require that either an arbitration or a mediation occurs in all Civil District Court and Civil Superior Court cases prior to a case going to a jury or bench trial as part of the alternative dispute resolution process. In Mecklenburg County, most District Court cases outside of family law cases are required to go to arbitration. In arbitration both parties and their attorneys typically put on evidence in a mini-trial setting before an arbitrator who issues a ruling as a third party neutral. The arbitrator is generally a senior attorney qualified as an arbitrator or a retired judge. After the arbitrator makes a ruling, a losing party has the option to request that the case proceed to trial by filing a motion for a trial de novo. However, a request for trial may come at the expense of another filing fee. The fee is generally $100 in Mecklenburg County District Court. Mediation is required in most Mecklenburg County Superior Court cases. In mediation, the parties to an action meet in a location, typically outside the court, like at the office of one of the parties’ attorneys, where they attempt to negotiate a settlement with a certified mediator who is a third party neutral who is also generally a senior attorney qualified as a mediator or a retired judge. Unlike an arbitrator, the mediator doesn’t make any final decisions for any cases. If a case fails to settle in mediation, the mediator typically declares an impasse and the case proceeds to trial, and generally without a fee. However, each party is generally required to each pay half of the mediator’s cost for the session, which is usually an hourly rate. As you can see, the required alternative dispute resolution process will cause further delay to your case being tried in court because it is a required pre-litigation step in the trial process.

Elected Judges

Like it or not, North Carolina has elected judges. While the federal judiciary mainly consists of Article III judges with life appointments (which is intended to avoid political pressure from influencing the decisions of the traditionally non-partisan, apolitical branch of government and which eliminates opportunities for bribery through campaign finance contributions), the North Carolina Constitution permits elected judges. Several studies in jurisdictions across the country reveal statistics that prove political influence over elected judges. For example: many elected judges are tougher on crime during election years. In some states, incidents have occurred where judges are convicted of crimes involving them accepting bribes and large campaign finance contributions from insurance companies and organizations connected to insurance companies who desire to gain control over how those judges exercise their authority. One of the most infamous occurrences of an insurance company buying judicial power happened in 2018 when State Farm paid $250 million to settle a federal racketeering lawsuit that alleged that State Farm essentially installed a handpicked justice on the Illinois Supreme Court bench by exerting its influence over and making large financial contributions to nonprofit organizations that pushed the judge to his seat on the bench of the Illinois Supreme Court. The Illinois Supreme Court Justice later voted as a deciding Justice in a narrow majority ruling to overturn a case brought up on appeal that affected State Farm’s bottom line in favor of State Farm. For more information, check out thislink. While there are few documented cases of judicial corruption in North Carolina, realize that it’s a possibility that could arise in North Carolina that could potentially impact your case in a state that is heavily favorable in its laws and its politics to insurance companies and tort reform. In other words, variables that you and your attorney lack any control over may impact your case at trial or in hearings and decisions made by judges on motions in your case.

Juries

The vast majority of Personal Injury Cases in North Carolina that go to trial are decided by juries instead of judges. This can be good or bad depending on the case you intend to bring into the court and the people that sit on your jury after jury selection is complete in your case. While the law requires plaintiffs to prove their case in accordance with a standard of proof and to prove elements of a particular legal claim such as negligence, a jury may rule against a plaintiff despite the plaintiff meeting their burden of proof and proving the elements of their claim, because the plaintiff’s character is called into question or when a jury doesn’t believe that a plaintiff was injured or injured badly. Even worse, the North Carolina Rules of Evidence forbid you from mentioning that the motorist who hit you had liability insurance coverage or that the insurance company is paying for the attorney representing the defendant. While judges are held to a standard of objectivity and disinterest, juries are often comprised of people with pre-conceived biases about issues that may affect their evaluation of your case. Juries are unpredictable and are often underestimated by litigants. It’s important to understand that when you go into trial, there is no telling what a jury may do with your case. But keep in mind that their unpredictability may be beneficial at times as well. It’s important to consult with a personal injury lawyer about your case and what they believe are potential pros and cons for juries to hear.

Other Issues that May Arise in Your Case

This blog does not contain a full list of the obstacles that could be ahead for you and your case. Each case is different and may contain different issues.

Get Your Case Evaluated

We strongly encourage you to call Biazzo & Panchenko Law for a RISK FREE, FREE CONSULTATION where one of our licensed North and South Carolina Personal Injury Attorneys, practicing in Car Accidents around Matthews and Charlotte area, can help you determine the best possible course of action. Please do not wait, and contact us at the earliest stage possible after any incident where you, a loved one or a friend have been injured by another. At Biazzo & Panchenko Law, we are prepared to negotiate a settlement for you or file a lawsuit to pursue your case through a jury verdict if warranted, to obtain the compensation you deserve. Contact Biazzo & Panchenko Law today to schedule your free personal injury consultation today. This blog is not to be construed as legal advice.

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