Whether your case should be litigated is a serious decision which must be thoroughly reviewed and discussed with your attorney.
- What are the costs of litigation?
- What is discovery?
- Discovery: What are interrogatories?
- Discovery: What are requests for production of documents?
- Discovery: What are depositions?
- Mediation: What is it?
- Mediation: Is it required?
- Mediation: Who pays for mediation?
- Jury Trials: 12 Strangers Decide your Case
There are several risks with litigating a case, but there may be benefits as well. Litigation can be expensive and it is not a decision to take lightly. Your attorney can help you weigh the risks and benefits of taking your case to litigation so that you can make an informed decision.
At the law offices of Riddle & Brantley, our ultimate goal is to resolve your case at the time which is best for you while considering all future costs against any future benefits. Sometimes it is best to settle your case before filing a lawsuit, sometimes it is best to settle after a lawsuit has been filed, and in other instances it may be best to let a jury decide your case.
We use our experience to help you review your options so that you can make the best decision regarding your case.
What are the costs of litigation?
Most clients do understand that the costs to litigate a case are ultimately the responsibility of the client. This means that even if we advance the cost to file your suit, take depositions, pay for doctors and other experts to testify, and pay for all the other costs associated with litigation, the client will have to pay for these costs once the case is resolved. At times, these costs can be very high, although usually they are reimbursed upon resolution of the case. In a very recent federal case involving an excessive force claim against a police officer, we incurred about $20,000.00 in advanced costs to take depositions and pay for experts. Remember, the costs associated with these cases are not attorney’s fees. They are separate and in addition to attorney’s fees.
If you win your case, then in many situations, the other side will pay for your costs to litigate but this is not guaranteed. If your case is worth $20,000 then it is not wise to spend $20,000 to litigate. Careful consideration should be given to the last offers from the other side before trying your case before a jury.
At Riddle & Brantley, we will give you legal advice based on years of experience in trying and settling cases. Litigating your case may be the solution for you or it may be your only choice, but we will offer you an honest evaluation of your options and try to help you select the best choice.
What is discovery?
If your case is in litigation then there will be an initial period where both sides exchange information about their cases, called discovery. During this phase of your case, each side will use different statutory methods of acquiring information from the other side. This helps give both sides a better understanding of the case as a whole. It prevents surprise, can narrow issues, and often leads to out-of-court settlements since both sides will now have a better picture of how the jury may view the case. Cases can evolve, for better or worse, during this phase of litigation.
There are six discovery devices which can be used. (1) oral depositions, (2) written depositions, (3) interrogatories to parties, (4) production of documents and things, (5) physical or mental examinations; and (6) Admissions. Some of these are more commonly used than others, and it is important to note that each party bears his own costs of discovery.
Discovery: What are interrogatories?
Interrogatories are governed by Rule 33 of North Carolina’s Rules of Civil Procedure. Interrogatories are questions which one party may serve on another party, whether or not adverse, which are to be answered in writing under oath. Generally, they must be answered and returned within 30 days and there can be no more than 50 interrogatives/questions, including subparts of questions.
If you are served with interrogatories we will help you answer them truthfully and in accordance with state law. There are many complicated legal issues regarding interrogatories which your attorney will help you navigate. For example, some interrogatories may be objectionable as they may request information which is outside the scope of discoverable information, privileged, calls for an opinion or conclusion of law, and many more. Your attorney will help you through this process as well as serve interrogatories on other adverse parties for you.
Discovery: What are requests for production of documents?
A party may serve on another party a request to produce and permit inspecting and copying, photographing, testing, and sampling of documents, papers, books, objects, tangible things, etc.; or entry onto land for the purpose of inspecting, surveying, testing, etc. A party served with such a request must serve a written response within 30 days. If the response is an objection or refusal to comply, the party submitting the request may move for an order directing production or entry.
In personal injury cases, these requests are common for medical records related to the accident, prior medical records, information concerned any lost wage claim, and pictures of injuries, the accident or the objects, such as vehicles, involved.
Discovery: What are depositions?
A deposition is a proceeding in the litigation of your case where sworn testimony is taken by a court reporter with all attorneys and parties present. The deposition may be used at trial so it is very important for you to take this part of your case seriously. There are many “dos and don’ts” concerning how to answer questions during a deposition and at Riddle & Brantley, we make sure that our clients are well prepared to honestly and effectively answer questions in a deposition. Depositions are taken of the parties, witnesses and medical providers. Our attorneys are always well prepared for these as the testimony and facts elicited can and will be used at trial.
Mediation: What is it?
Mediation is the forum where both sides are offered an opportunity to present their cases to an independent and neutral person (the mediator) who attempts to provide alternatives and options to settle the legal matter in dispute. In most cases, mediation is conducted after filing suit; however, we have mediated cases successfully prior to suit being filed. The mediator is usually another attorney or a retired judge. Attorneys must take extensive training and classes to help them develop the skills necessary to accomplish the goals of a mediator. Both parties are usually able to agree on a mediator or the court may appoint one.
Prior to the mediation the mediator is required to define and describe the following to both parties at the beginning of the mediation:
- The process of mediation;
- The differences between mediation and other forms of conflict resolution;
- The costs of the mediated settlement conferences;
- That the mediated settlement conference is not a trial, the mediator is not a judge, and the parties can retain their right to trial if they do not reach a settlement;
- The circumstances under which the mediator may meet and communicate privately with any of the parties or with any other person;
- Whether under what conditions communications with the mediator will be held in confidence during the conference;
- The inadmissibility of conduct and statements;
- The duties and responsibilities of the mediator and the participants; and
- That any agreement reached will be reached by mutual consent.
Once this has been explained, both parties will have an opportunity to present their side of the case. This is done to educate the mediator and communicate your position to the other side prior to negotiations. After this is completed, both parties will separate and the mediator will then deliver messages between the parties until the mediation is concluded in settlement or otherwise.
We have mediated cases involving auto accidents, premises liability (slip and falls), dog bites, and even workers’ compensation cases. Many cases settle in mediation and many do not. Mediation is not the only forum in which parties are allowed to negotiate or resolve the case. Often, if the case does not settle and mediation, it will help both parties narrow the major concerns of the case and allow them to resolve it at a later date. However, mediation may provide the last attempt to resolve your case without incurring the additional expenses and costs to continue litigating your case to the point of a jury trial.
In our many years of representing personal injury clients all across the state of North Carolina, we have found that mediation can be very successful tool in settling our clients’ cases. Our clients still have the power at mediation to control their destiny. The mediator cannot force you to settle your case but he or she can, in most situations, obtain the best offer from the other side. Mediation may provide the last attempt to resolve your case without incurring the additional costs necessary to completely litigate your case.
Mediation: Is it required?
Yes, most civil disputes in North Carolina must be mediated before they can be adjudicated in court. This mediation requirement applies to lawsuits filed in Superior Court, District Court, and the North Carolina Business Court. In injury cases, mediation is required after a lawsuit has been filed and the parties have had sufficient time to conducted discovery. Once a case is ordered to mediation by the court, the parties may select a mediator by agreement. If no agreement can be reached then the court will appoint a mediator.
In Workers’ Compensation cases, mediators are appointed by the Industrial Commission once the employer or employee files for a hearing on the merits of the matter. In just about all of our cases, including Workers’ Compensation, we are able to reach an agreement with the defendants regarding the mediator and the dates for the mediation.
Mediation: Who pays for mediation?
Under the rules of mediation, both sides share the costs of the mediator’s fees. However, in many injury cases which settle at mediation, the defendants will usually offer to pay the full cost of the mediator’s fees as part of the settlement. If the case is not settled, then you may be responsible, as an advanced cost, for one half of the mediator’s fees.
Jury Trials: 12 Strangers Decide your Case
In North Carolina most of our injured clients have the right to a trial by jury if the parties are unable to resolve their claims by negotiations. However, if your case is a Workers’ Compensation injury then you don’t have the right to a jury trial as the Industrial Commission is the sole venue for your case. This means your case will be decided by a judge rather than a jury. Likewise, if you have a Social Security case, your right to benefits will be decided by a federal administrative law judge.
Over our many years of experience, we have learned that we must always seriously consider all options of resolution prior to actually putting your case in front of a jury. This is because putting your case in front of a jury can be a gamble. In North Carolina, you must persuade all 12 jurors that you are entitled to the relief you are requesting. As you might imagine, this can be very difficult. We have tried all types of injury cases ranging from auto accidents, dog bites, premises liability involving slip/falls and injuries climbing ladders and steps, violations of constitutional rights, and even property damage cases.
As your attorneys, we never know what a jury will decide once it hears your case. Remember, there are always two sides to every case, and the jury will hear the defendant’s side after hearing your side. No matter how convinced you may be of your side, there is always a chance a jury may see things differently. In the past, we have won cases we knew were very difficult and we have lost cases that we really thought we would win. It is also important to remember that winning a case is not just about having the other party found to be at fault, but it also includes having the jury award a fair amount of compensation. Achieving both of these tasks can be difficult and the chances of success regarding both issues must be evaluated. If the jury determines that the other party was at fault but awards you little or no money for compensation, then you have won the battle but lost the war. If the other side offered more money than the jury awards you, then you may have really lost and in some instances may even have to pay the costs of the other side.
Putting your fate in the hands of 12 strangers on a jury can be risky. In most situations, you have no choice. In other situations, all offers and attempts to compromise and settle should be carefully evaluated. You never know what 12 strangers to your case will do. Let our experienced injury attorneys at Riddle and Brantley help you thoroughly evaluate the facts of your case so we can help you make an informed and educated decision about your case so you can get the justice you deserve whether through a jury trial or settlement.
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