The word “litigation” describes the process of a lawsuit. Everything starts with the filing of a “complaint”, and the issuance of a summons. Both the summons and complaint must be served on the person or people being sued – the defendant(s). Once the opposing party has been served, they have 30 days to file their responsive document, called an “answer.” If no answer is filed, the plaintiff can begin the process of getting a default judgment, meaning that the lawsuit has been “won.” If an answer is filed, the two sides move on to the most expensive phase of the process: discovery.
Discovery
Discovery is the voluntary exchange of information between the two sides. It is usually accomplished by exchanging written questions (interrogatories) and requests for production of documents, as well as by conducting depositions. There are other discovery tools available, as well, but they are used less frequently. Responses to interrogatories must be signed by the client, with the signature notarized. This phase involves a lot of work, and therefore a lot of expense: many hours spent drafting discovery requests and preparing for depositions and many more hours responding to discovery requests.
Mediation
Mediation is mandatory in all civil disputes in North Carolina, and the usual time for mediation is at the end of the discovery process, although it can be held at any time. Mediation is a likely time for your case to settle, if settlement is possible. Most civil cases settle; nationwide, fewer than two percent of civil cases go to trial. If your case does not settle at mediation, it will move forward to trial. Of course, settlement negotiations are still possible even after mediation, and cases can and do settle on the proverbial courthouse steps.
Settlement
In deciding whether or not to settle, and in fact, in deciding whether or not to file suit in the first place, you will need to think carefully about what you need to get out of the lawsuit in order to make the whole venture worthwhile. Litigation is an exceptionally expensive process, so in the absence of significant damages, it is not likely to be worth your time and money, unless there is a possibility of recovering attorney’s fees.
Attorney’s fees
Attorney’s fees are only recoverable where there is a statute authorizing them, or where there is a contract that has an attorney’s fees provision. Where attorney’s fees are recoverable, filing suit over a relatively low amount of damages might make sense. But in the normal course of events, you will have to decide whether your recovery is likely to be enough to make the significant expenditure on attorney’s fees worthwhile. Obviously, spending $50,000 to recover $100,000 is probably worth it; spending $50,000 to recover $60,000 is probably not, considering how time consuming and stressful most clients find litigation to be. Whether or not to settle, and for how much, is a call only the client can make; ideally, at the close of discovery, there will be enough information to allow for a clear-eyed decision. Taking your case to trial may be the right call, but it is a risky one.
Some types of litigation matters that we handle at the Burt Langley law firm: