CIVIL LITIGATION: A GENERAL OVERVIEW
Jan. 17, 2020
Any type of civil litigation can be stressful and you should be aware of the process before you are involved in the same. There are strict guidelines that you or your attorney must follow throughout the process and it is important that you have the right attorney to assist you. This article is meant to be a very broad overview of litigation in the State Courts of North Carolina and there are many rules through the process that will come in to play which may adjust the process discussed below. Moreover, the rules will vary depending on whether you are litigating in State Courts or Federal Courts.
A civil lawsuit is begun by the filing of a Complaint and filing of a Summons issued by the Clerk of Court in the appropriate jurisdiction within the State. If you are the plaintiff, i.e. the person or entity bringing the lawsuit, you must make sure that you are bringing the action within the applicable statute of limitations. For instance, if you are involved in a car accident and suffered an injury to your person or property, you must file your claim within three years from the date of the accident. Or if you are involved in a contract dispute and you claim the other side breached the contract, you must bring your action within 3 years of the alleged breach. If you do not do so, then you are prohibited from bringing your cause of action, or if filed after the expiration of the statute of limitation your case is subject to dismissal.
Once the Complaint is filed, and you are within the applicable statute of limitations, you will need to make sure that the Complaint is properly served on the defendant(s). Service on the defendant(s) can be accomplished by personal delivery by the sheriff in the county where the defendant(s) is/are located. You can also serve the Complaint by certified mail with a return receipt requested. If you are unsuccessful in service under both of these methods, you must consult Rule 4 of the North Carolina Rules of Civil Procedure to obtain proper service. If you are successful in your service upon the defendant(s) you must then file an Affidavit of Service with the Clerk of Court. Keep in mind that you must keep your Summons “alive” until such time as you are able to accomplish “good” service. All Summons issued by the Clerk of Court are good for 60 days from the issuance of the Summons otherwise it expires. In order to make sure you still comply with the relevant statute of limitations, you must have the Summons reissued or have an Alias and Pluries Summons issued within 90 days from the original issuance of the Summons. Doing so will allow the reissued Summons to relate back to the original date of issuance and filing. If you don’t have the same reissued within the 90 day period, then the Summons will not relate back to the original date of issuance and your case may be subject to dismissal.
Once the Complaint is filed and served, the defendant(s) will have 30 days from which they were served either to move to dismiss the case or to file their answer. In the answer, the defendant(s) is/are required to admit, deny or deny having the information necessary to either admit or deny the allegations. The defendant will also assert “affirmative defenses” to the action, some of which are deemed waived unless properly asserted in the Answer to the Complaint. The Answer must also be served upon the plaintiff(s), or his/her/their attorney if one has been retained. Incidentally, the defendant(s) can request a 30-day extension to answer from the Clerk of Court.
After the Answer is filed and served, then the parties will engage in discovery. Discovery is the device used to gather information about the facts of the case. Discovery can include interrogatories (questions), requests for production of documents, requests for admissions, depositions or demands for inspections. This process can take many months to complete but is extremely important when building your case or defending an action against you. Once complete, and sometimes even before discovery is complete, either the plaintiff(s) or defendant(s) may bring a motion before the Court asking the Court to rule on the matter before trial. The Court may grant the specific motion thus ending the case, or deny the motion(s) requiring a trial of the action.
If your case is scheduled for trial, it can either be held in front of the judge who will act as the ultimate fact-finder, or in front of a jury. If the matter is a jury trial, then the parties will select a jury of 12 individuals who will act as fact-finders in the case and ultimately rule on the case based upon the evidence presented at trial. The trial, like the other aspects of the litigation, is very specialized and requires an attorney with experience who can navigate the rules of trial in order to obtain the best possible outcome for their client.
Contact The Duggan Law Firm, PC for all of your civil litigation needs!