Although every case is different, most lawsuits follow the same general pattern. This blog will help you to understand the general life cycle of a lawsuit. Let’s start with a quick overview. All suits begin with an initial complaint and answer, followed by hearings on any preliminary motions (i.e. Motions to Dismiss). The next step is typically discovery, which is the exchange of documents and information by the parties. Most suits will be ordered to mediation to see if the dispute can be settled amicably before proceeding towards trial. If settlement is not possible, additional discovery, motions seeking to dispose of the case (i.e. Motions for Summary Judgment), and ultimately a trial will ensue. The time involved can vary widely from suit to suit, but in this series of posts, I’ll explain each step in the process and provide a rough idea of the timing of each step.
If you are a business, the first thing you must do is hire an attorney. North Carolina law actually prohibits an LLC or corporation from appearing in court on its own behalf; only a licensed attorney can file legal documents or make court appearances for your business. Even if a lawyer is not required, hiring one is still an obvious first step. The litigation process is full of complex rules and procedures. A mistake on even one procedural issue can cause you to lose your case before ever having a chance to prove your case. Take the time to select an attorney with experience handling your type of case, and just as important, an attorney that is skilled and has practical business experience outside of the law. It is important that your attorney be able to guide you through complicated business decisions that are just as important as the legal decisions in your case.
The first phase of a lawsuit is the initial filing phase. This process starts with the drafting and filing of the Complaint. In theory, this is just a short, plain statement of what the other party did wrong and what sort of compensation your business is seeking. In practice, it is far more complex. If the right claims are not made in the right way, you run the risk of having your suit thrown out of court early in the process. If you forget to make certain claims or request certain types of compensation, you may not be able to pursue them at a later date. The Civil Summons is also filed with the Complaint. The Summons is the official document that gives the defendant notice that suit has been filed against him. Serving the Summons and Complaint is one of those procedures that has to be done with exacting compliance with the rules of civil procedure. The right person must receive them and the documents have to be delivered in a certain manner. If you serve the wrong person or deliver the Summons and Complaint the wrong way, you are looking at a delay in your suit at the very least. A North Carolina Summons must be served within sixty days, but it can be renewed up until ninety days after its issuance.
The defendant’s Answer is the next step in the opening phase of litigation. The defendant has thirty days from the date it is served with the Summons and Complaint to file an Answer with the Clerk of Court. In most cases, the defendant will request extra time to answer the suit. The Court will almost always grant another thirty days to answer, so long as the original thirty day time limit has not yet expired. Like the Complaint, the Answer is a simple in theory, as it is just a statement of the disputed facts. In practice, it will list numerous defenses, which are reasons why the defendant should not have to pay you money, even if he did what you claiming it did. The Answer may also include counterclaims and cross-claims. Counterclaims are basically a lawsuit the defendant files against you; if it proves its claims, you may owe it money. Cross-claims are claims the defendant asserts against other third-parties. Each counter or cross-claim has to be answered within thirty days, with extensions available. If an answer is not filed within the appropriate time, the claimant may be entitled to a default judgment, which allows it to win the compensation sought without having to actually prove the claims asserted.
This first phase of litigation can go very quickly, or it can drag on for a long time. If you are suing just one party, get them served properly, and they do not request an extension to answer or make counter or cross-claims, it can be a month or two before the initial phase wraps up. If you are suing several parties, have trouble serving them, or are facing counter or cross-claims, this first phase can easily drag out for several months or more.
At Miller & Monroe, we have the experience and skill to help you navigate these complicated waters. Our lawyers have prosecuted and defended complicated and critically important matters for our clients. If you are considering filing a lawsuit, please call today and setup a consultation to discuss your options.
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