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By E. Drew Nelson, Attorney

Many people come to an attorney when they feel they have been wronged and want to know what legal options may be available to them. What many people do not know are the steps necessary to litigate a claim. Once you and an attorney have met to decide that you have a valid claim then several steps happen down the road that ultimately may or may not lead to a trial before a judge or jury on your case.

Often times an attorney will send a letter to a person in an attempt to settle the matter prior to litigation. If that does not work to encourage a settlement, then you may decide it is in your best interest to file suit to protect your rights.

Steps to Litigate a Claim

First you need to decide what court you want to sue in. This is fairly simple as most cases depend on the dollar amount of damages in question. In the North Carolina court system, Small Claims or Magistrate Court can handle matters up to $10,000. District Court handles matters up to $25,000 and Superior Court handles all disputes over $25,000.

The legal action does not really start until you file a complaint. A complaint is essentially a recital of facts that support your claim. In the complaint an attorney will lay out the relevant facts and specify the legal remedies that you seek. The filing fee for a complaint is currently $150 in District Court and $200 in Superior Court.

Next the complaint must be served upon the Defendant. The Clerk will generate a summons that will serve as official notice to the Defendant that a lawsuit has been started. Usually a Sheriff will deliver the paper work to the Defendant. You must have service on the Defendant before you can proceed with the lawsuit.

After the Defendant is served they will have 30 days to respond to the complaint. Typically they can request additional time if needed but ultimately must file an answer to the complaint or risk having judgment entered for their failure to answer. Sometimes a Defendant may choose to file counterclaims against you. Other times they may assert defenses to your complaint or request motions be heard by the Court.

Upon the expiration of the time period to file responsive pleadings the parties will enter into the discovery phase. This is often the most misunderstood phase of litigation. Broadly this is the time where the parties are allowed to gather as much information about the case to be prepared to try their case before a judge or jury. This can occur in a number of ways but most likely counsel for each party will serve written questions for the other party to answer. Each party will also likely request copies of relevant documents that are in the possession of the other party. Each party is required to provide answers to these questions and produce such documents that are likely to lead to the discovery of relevant information. Parties may choose to take depositions during discovery. Depositions are oral examinations of parties or potential witnesses. Such depositions are taken under oath and will be transcribed to use later in court.

Some cases may be required to participate in mediation. The idea behind this is to encourage settlement of claims prior to the matter appearing in a courtroom. Mediation is favored by many parties because it can take some of the uncertainty out of a trial. Also it saves time and resources of the client in preparing for trial.

Do all cases go to trial?

It is true that most cases settle prior to going to trial. However, if the parties cannot reach a decision the final step may be a trial before a judge or jury. During this the parties will present evidence, call witnesses to testify and attempt to persuade the judge or jury of the merits of their case. In the end a judge or jury will render a decision in regards to the case. This decision will be final unless there is a cause to appeal the case on a variety of grounds.

While every case is different, the attorneys at Brinkley Walser Stoner, PLLC have a vast array of experience in a variety of civil causes of action. Contact an attorney today to discuss the facts of your case and see if filing suit may be in your best interest.