STARTING A LAWSUIT
If settlement cannot be reached with the insurance company, your attorney will consider the advisability of filing a lawsuit. In some cases, however, it is important to start a lawsuit immediately. No lawsuit should be started without your permission and a comprehensive explanation as to why your attorney thinks a lawsuit is necessary.
A lawsuit is started by delivering to the other party a paper called a Complaint which indicates to the party of fault that (s)he is being sued as a result of the accident that caused your injuries. The other party is called a defendant. The defendant takes these papers to his/her insurance company which delivers them to its lawyers. The lawyers then deliver to us a paper called an Answer, which contains the legal defenses to the claims presented in the Complaint.
Although a lawsuit may be started, settlement is always possible and is very often made just before trial. However, in the past few years, in less complicated cases, insurance companies or their attorneys have been more willing to conduct early mediation in order to try and settle cases without incurring substantial litigation expenses in defending the case.
One year from the date of filing a lawsuit, the case is put on the Jury Trial Roster after which the parties shall be prepared to try the case. Cases are called for trial in the order of which they were filed. Sometimes, usually in more complicated cases, a Scheduling Order is entered that will extend the time for completing Discovery and getting the case ready for trial. In more complicated cases, a case can take up to two years from filing to get to trial, but generally cases will be called to trial 12-18 months after filing.
Once the lawsuit has been started, both sides have the right to obtain information about the case by discovery deposition, interrogatories and request for documents.
Discovery depositionis the testimony of some party or witness given under oath in the presence of attorneys for both plaintiff and defendant, and before a court reporter who takes down the testimony.
Interrogatories are written questions which either attorney may submit, and which have to be answered in writing under oath within 30 days of being received by them in the mail.
Request for documentsare written requests for production for the other party to produce all relevant documents, photographs, videos, e-mails, exhibits, or any other tangible evidence which may help support a claim or defense or in determining what evidence may be used at trial,.
Your attorney generally uses all of these discovery methods to help investigate the facts, prove liability and damages, and to evaluate the merits of the case. The defendant's attorney will also use these procedures to determine and evaluate all aspects of the case.
Under the laws of South Carolina, there are no longer any secrets in lawsuits of this kind. The attorneys for both sides take depositions and submit interrogatories to assist them in finding out all the facts. At any time throughout this period, the possibility of settlement may come up again and your attorney should endeavor to discuss settlement with defendant’s attorney as the case moves along.
You must bear in mind that it is the prerogative of the defendant, or his/her insurance carrier acting on their behalf, to take the case to trial. That is, while your attorney may be of the opinion that the case should be settled without taking incurring substantial time and expense in litigation and trial, and while your attorney may present all documentation possible in support of his position,he cannot require a settlement. Therefore, despite all efforts to the contrary, your case may be tried in Court. However, an estimated 98% of all cases are settled out of Court.
In most of the larger counties in South Carolina, Court rules now require that most types of personal injury cases go to a settlement mediation conference before the case can proceed to trial. Mediation is a highly effective form of settlement conference in which a trained and skilled neutral (the mediator) facilitates communication, reconciliation and negotiation between the parties, in order to achieve the voluntary and mutually acceptable resolution of disputes. Mediation is practical, relatively informal, and unencumbered by courtroom procedures or legal technicalities. In most cases, mediation is significantly less expensive than continued litigation. A Mediation conference must be held within 300 days after the filing of the action. Pre-suit medical malpractice mediations are required to be held not later than 120 days after all defendants are served with the “Notice of Intent to File Suit" or as the court directs. The mediator’s fee is split between the parties involved in the case. For information about mediation can be found at www.scmediator.com.
The great majority of cases never are tried, even though lawsuits are started. Often, however, they are settled within just a few days before the trial date. If your case cannot be settled for a fair amount of money, your attorney will, with your permission, proceed to trial. Before going to trial, the few weeks before the trial date are spent by your attorney in detailed preparation of your case for trial. What is expected of you at trial will be explained to you in minute detail well in advance of your going to the Courthouse.
Once all discovery is complete, the case is ready for trial. You should receive notice from your attorney’s office a few weeks prior to the term of court in which your case might be reached for trial. You must realize that your attorney has little control over how quickly orifyour case will be reached during any particular term of Court. Cases are reached in the order in which they appear on the calendar. Further, since it often happens that many cases are settled at the last minute just prior to trial, the result in many instances, is very little notification prior to your being called to Court. For example: At the commencement of Court, your case may occupy position #50 on the roster, and some 20 cases preceding it are set for trial. If all preceding cases were actually tried, your case could not conceivably be reached in a two- week term. However, you will be notified to be on stand-by just the same. If, after the trial of two cases, numerous subsequent cases are settled, you could be called on 24 hours notice to come immediately to the Court room for your trial.
This situation requires your cooperation under what might comprise rather trying circumstances. Every effort will be made to afford you as much notice as possible in order that little disruption to your normal schedule will occur.
Depending on the severity of your damages and injuries, questions of liability, and the number of witnesses required to prove your case, a trial may take 1-3 days, for most cases. Only very involved matters will require any additional trial time. These might include premises liability cases, death cases, cases involving a defective product, etc.
VERDICT OR SETTLEMENT
You are the final judge of all offers in settlement which are received, considering, of course, the professional judgment and advice of your attorney. If the case is not settled, the jury, composed of twelve persons in State Court and six persons in Federal Court, will make the decision in the form of a verdict. In South Carolina, the jury’s verdict must be unanimous – they must all agree on liability and the amount of damages. This verdict must be based on the law as the Judge charges it, or explains it to the jury. The amount of the verdict is generally solely within the jury's discretion and generally, is not appealable unless it is shockingly high or inadequate. However, certain errors of law committed by the Judge during trial are appealable. Only in these specific situations can you assert grounds for an appeal. You should bear this in mind, therefore, when considering and weighing all offers of settlement which may be proposed.
Upon conclusion of a successful settlement or verdict, and after receipt of the insurance company check, which usually occurs within two weeks after settlement, your attorney’s office will notify you to come in and complete the closing documents. You will be supplied with a Settlement Statement which outlines completely all expenditures made in litigating your case, the attorney's fees authorized by your Attorney’s Representation Agreement and the net proceeds to you. At this time, the case is concluded and the medical records, depositions, photographs and other documents which are contained in your file are yours to keep, if you so desire.
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