A North Carolina Personal Injury Lawsuit is unnerving for everyone involved, Plaintiff, Defendant and especially witnesses. Today, we are trying to address some of the sticking points from filing a personal injury complaint to the day before the trial. While there may be more than one right way to do something, we are going to discuss our way based on our experiences.
The Bishop Law Firm represents victims in personal injury claims in Raleigh, Cary, Fayetteville, Durham, Rocky Mount, Wilson, Smithfield, Louisburg, Chapel Hill, Roanoke Rapids, Greensboro, Winston Salem, Greenville and surrounding areas in North Carolina. We do not get paid unless we win your case, and we offer free case reviews.
Overview of NC Personal Injury Case
Your personal injury case can be settled at any stage of the process. Some cases are settled during the claim stage while others have to go all the way to trial for resolution.
Injury Stage
After your injury, you should seek medical treatment as soon as possible and continue to follow your doctor’s advice. If you are filing a claim on behalf of a party that died because of the injury, it is classified as a wrongful death case.
In order to have an actionable personal injury case in NC, you must sustain an injury through no fault of your own. In some cases, it is clear who is at fault for the accident. In other cases, the at-fault party can be harder to identify. Fault is a serious impediment to NC Personal Injury Cases because NC is a contributory negligence state.
Claim Stage
After the injury, you need to inform the at-fault party or their insurance about your injury. Sometimes this can be a difficult task if you are dealing with an individual or business who doesn’t want to give you their insurance information. If you successfully contact the insurance company, they will open a claim for you. Your claim will be assigned to an adjuster who will contact you by phone or mail. The adjuster will want to communicate with you about the accident, your injuries, and your medical treatment. This communication can be informal or it can be handled during a recorded statement.
The question of how much information to give the adjuster depends on the circumstances of your case. Adjusters can use the information you give them against you, but not giving them any information will result in a denial of your claim. This can be tricky. Your medical treatment, accident-related expenses, missed time from work, and travel expenses should be reported to the adjuster.
If you are unsure what information, if any, you should provide to the adjuster, contact a personal injury lawyer who can help you navigate the process. In the alternative, if the insurance adjuster will not offer fair compensation after you send a demand package detailing how their insured caused your injury, litigation should be considered.
If you choose to litigate, consider the following pre-trial considerations:
North Carolina Personal Injury Lawsuit - Trials at Pre-Trial
Pre-Trial is your time to get all your ducks in a row. Do not waste this precious time assuming things are going to settle in mediation, because they may not, and you will regret this choice later.
1. Complaint - North Carolina General Statute Chapter 1A Article 3
- DO NOT WAIT UNTIL THE LAST MINUTE TO FILE YOUR COMPLAINT. Under North Carolina Law, most personal injury cases have a 3-year statute of limitations. Wrongful death cases have a two-year limitation period from the date of death.
- Make sure you file in the right county (where the accident occurred) and the right court (Superior vs. District). The right court depends on the amount in controversy. Superior is for cases asserting $25,000 or more in damages. District court covers cases with damages of less than $25,000. Filing the complaint will cost $200.00, so do not waste time or money filing in the wrong place.
- Be sure to include every party you know of that you have a personal injury claim against (for example, in motor vehicle accidents, you want to include the driver of the car as well as the owner of the car, and in premises liability cases, you will include the property owner and the property management company). You may be able to add a party later, but do not count on it. (FYI- The at-fault party is the party against which you have a claim, not their insurance).
- Be accurate in your descriptions. The court and opposing counsel will review your complaint many times. Bad recitation of the facts regarding your injury claim can hurt you.
- If this is a motor vehicle accident case, take the blurb from the actual accident report as well as the charges and put them directly into the complaint to support your claims. Consistency, consistency, consistency.
- Include all claims, negligence, punitive damages, etc. and use the right words to support those claims using the NC General Statutes as a guide. For example, negligence requires a duty, breach of that duty, and injury that was the actual and proximate cause of that breach. Your claim for negligence is in bad shape if it does not include the words duty, breach of duty and proximate cause of injury.
- If there is a hint of contributory negligence in your case, be prepared for Defendant to address this in their answer. Also read NC Contributory Negligence.
2. Service (Process) - North Carolina General Statute 1A-4
- Your first attempt at service of the complaint on the defendant is via the Sheriff. In most counties, you will have to mail your complaint to the sheriff for the sheriff to complete service. At our firm, we have had problems getting service notifications back, so watch out for that. We usually have to do an affidavit confirming service ourselves saying that the sheriff completed the service.
- If the sheriff is unsuccessful at service, you can try certified mail. If you are running out of time on your original summons (the summons is good for 60 days), file an alias and pluries or A&P summons within 90 days of the original or preceding summons (A&P summons will extend the time for the service of the complaint and relate it back to the date of filing) and again and again (if necessary). Service without a valid summons is no service at all. If you are close to the statute of limitations, you do not want this problem!
- Know your local rules! Some counties will only accept original copies of the green card demonstrating service by certified mail.
- If certified mail does not work, you can try a process server. If the process server is successful, submit their affidavit to the court as proof of service.
3. Discovery - North Carolina General Statute Chapter 1A-1, Rule 26
- When you send out a complaint to Defendant, you can include discovery with it (discovery includes interrogatories, request for admissions and request for production of documents). Not everyone includes discovery with their complaint, but it must be done, so that is a good time to do it. Our best advice with discovery is to be sure to ask the right questions. Do not beat around the bush or try to be polite: Where were you at this date and time? Do you own this vehicle? If not, who is the owner? What happened during the accident? Admit that you did this or that.
- Interrogatories - Don't send generic discovery, you should ask pertinent questions that help your case. Think about what information you need in order to prove your claims.
- Admissions - ask the Defendant to admit what they have done.
- Request for Production - ask them for any documents that you are going to need to prove your case.
- Depositions – depositions involve taking an oral statement from a witness, under oath, before trial.
- Plaintiff- The defendant’s attorney will take your deposition. Be sure to stay calm during your deposition and remember not to get angry or upset no matter what! This is a preview of your trial performance. If you misspeak at your deposition, just correct yourself so your correction gets on the record. Humans are not perfect, and mistakes are likely, as long as they are not falsehoods. In a deposition, questions can be asked that are not necessarily admissible at trial and if you have an attorney, your attorney will object at the time but not stress over it.
- Defendant and other witnesses- When it is your turn to do a deposition of Defendant, extend the same courtesy that was extended to you during your deposition. This is the art of war. If the Defendant misspeaks, ask him/her the question another way to allow another opportunity for answer. If the Defendant is untruthful, clarify that they understand your question and ask again. This is not a game of "gotcha", its fact finding. Besides, you do not want the Defendant to be able to say that he did not understand the question.
4. Mediation - See Rules for Mediated Settlement Conferences via the NC Supreme Court
- Mediations are usually held by Zoom. Choice of mediator is very important. Mediators need finesse and neutrality, both of which are necessary for mediation to go smoothly. You want a mediator that is respected by both Plaintiff’s and Defense attorneys.
- Do not take the insurance's low ball first offer as offense, it is common.
- Do not believe an early "final offer."
- Make your case to the mediator and he will take that to the other side but be nice to the mediator as he will take that vibe with him to the other side as well.
- The point of mediation is dual compromise, so do not be the one doing all the compromising.
- Remember that mediation is not your last chance of settling your case. You can settle at any time up to verdict.
5. Witness Affidavits - North Carolina General Statute Chapter 1A-1, Rule 56(c)
- In order to withstand a motion for summary judgment (or partial motion for summary judgement), you need evidence. Your evidence at this point consists of the complaint, answer, discovery responses and deposition testimony. You need more evidence! Witness affidavits can help you here (but not at actual trial). Get witness affidavits as soon as possible after taking on the case and submit them to the court.
- Also read North Carolina Personal Injury Lawsuit - Pre-Trial Motions
6. Documents - North Carolina General Statute Chapter 8C-1, Rule 803 & Chapter 8, Article 8, Rule 8-61
- The NC Rules of Evidence disallow hearsay unless it is permitted by an exception. Know the exceptions found in Rule 803 that you can use to get each piece of evidence in so you and your witnesses can testify about it. Not being able to show the jury hard evidence will hurt your case!
- Plan out your trial beforehand with all evidence needed to prove your points. You will definitely need:
- Medical Records
- Medical Expenses
- Proof of lost wages
- Proof of loss of vehicle damages or other relevant damages
- Accident Report
- Incident Report
- Photographs of injuries
- Photographs of scene
- Any expert reports
- Complicated cases are going to require more evidence, but you have to find a way to get that evidence in at trial!
7. Witnesses - North Carolina General Statute Chapter 8, Article 8
- Subpoena all witnesses for trial, especially Defendant. You will need to speak with them to confirm attendance. You do not want a necessary witness to do a no-show and have no recourse because you failed to get out a subpoena and simply relied on their word to show up. Send a copy of your subpoenas to the court with confirmation of their sending. This may seem excessive, but this will save you so much trouble later if a witness does not show.
The above is what we consider to be the bare minimum for pre-trial. This is not all inclusive, but we have to end this post sometime! Unfortunately, for some, the road to recovering fair compensation is hard and court cases are the only way to hold an insurance company responsible for their insured's negligent actions.
We have all seen jury trials on television. Fortunately, real life trials are not full of angry judges, attorneys, jurors, and clients, but trials are complex none the less. The choice to pursue litigation, jury selection, motions, and postponements are all important aspects of your case that should be discussed with a North Carolina Personal Injury lawyer. Stay tuned for more information on North Carolina Personal Injury Litigation.
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