If after all the things that I discussed in the last blog do not bear fruit – that is, the attempted negotiations with the insurance adjuster fail – the next step is a lawsuit. If you are like most people, you have never been involved in a lawsuit and have absolutely no idea, other than what you may have heard on TV or from friends, as to what that entails. Let me try to clarify what it means and what it doesn’t mean. For the purposes of this article, let’s assume that the case arises out of a car wreck.
Filing a lawsuit simply means that papers are filed with the court. Those papers are a Summons and Complaint and the filing of these documents is what begins a lawsuit. The next step in the process is to take copies of those filed documents and to have them served on the defendant (the one being sued). There are rules in the South Carolina Rules of Civil Procedure that tells us lawyers how to properly serve people. It may sound fairly simple but believe me, otherwise good cases can get sidetracked if the defendant isn’t served properly.
Once the defendant is served with the Summons and Complaint, they have 30 days in which to Answer. In general, say for instance in a wreck case, the person who was at fault in the accident will get served with the Summons and Complaint. They don’t know what the heck to do with those documents so they give them to their automobile insurance company. The insurance company then forwards the documents to an attorney or law firm of their choice in the same county where the wreck occurred. That attorney then files and serves an Answer to the Complaint within the 30 days of service.
After the defense attorney answers the Complaint, the lawsuit enters into a phase called discovery. Discovery is just as its name suggests, a time period for each side to discover facts about the incident giving rise to the case and about the other side. Discovery takes 2 primary forms: paper and depositions. Paper discovery includes documents such as interrogatories and requests for production. These are documents that both sides send to each other. In these documents, the sides ask each other questions about the litigant’s background, history as well as the incident which prompted the lawsuit in the first place. This stage of discover can also include subpoenas to third-parties requesting documents and other materials.
Depositions typically occur after most of the paper discovery has been completed. A deposition is transcribed testimony, under oath, in which you answer the opposing attorney’s questions. Depositions take place at one of the lawyer’s offices and can last anywhere from 1 hour to days. In the average wreck case, I estimate that the norm that I have seen is about 2 hours for the plaintiff. In a deposition, your lawyer is sitting beside you at a conference table, there is a court reporter on the other side taking down your testimony and the opposing lawyer is sitting in front of you asking questions. While depositions can seem intimidating, they are usually not nearly as bad as people think they will be.
Finally, in many of the counties in South Carolina including Greenville, we have what is known as mandatory mediation. The means that certain lawsuits filed in the applicable counties must mediate the case before it goes to trial. Mediation must occur within 300 days of the filing date on the Complaint. It is my belief and experience that mediation is a good thing. It is an opportunity for both sides to meet at a third-party lawyer’s office to try to negotiate a settlement. The third-party lawyer is a neutral and is on no one’ side. The only job this person has is to attempt to facilitate a settlement. Mediations can last hours to days, although it is rare for them to last more than a day unless the case is extremely complex. Mandatory mediation has been very successful in the counties where it has been implemented and has helped to clear backed up court rosters.
If the case cannot be resolved and settled at mediation, the next step is the march to trial. Trial in a civil suit is a topic all by itself. As such, it will be addressed in a separate article! Hope this was helpful.