What Happens When Settlement Negotiations Fail in a South Carolina Personal Injury Case

The Pleading Phase of a South Carolina Accident Injury Lawsuit

Before we begin, one disclaimer: if you’re trying to do this on your own, it’s like doing surgery on yourself.

The fancy word for the lawsuit process is “litigation.” It starts with papers filed at the courthouse, called “pleadings,” because they ask or plead with the court to do something.

The accident victim files the first pleading, rightly known as a “complaint.” This is your lawsuit. In it, you are called the “plaintiff.” The wrongdoers at fault for hurting you are called “defendants.”

Your case is different if it involves a health care provider, like a hospital, doctor, nurse, assisted living facility, or nursing home. There’s an extra filing you’ve got to make before you can file a lawsuit. It’s called a notice of intent to file suit. That pleading contains the basic accusations you make against the health care providers, plus basic information about the treatment you required to fix it. Most importantly, it contains an affidavit from your expert proving how the health care provider violated the standard of care, meaning industry standard safety rules, causing injury or death. Before you can file the lawsuit, the law requires a mediation, where the parties meet with an experienced attorney who helps them try to settle the case. Many times, it’s just too early for it because neither party has the benefit of the discovery phase to develop the evidence of the case. After the initial mediation fails, you can file the lawsuit.

Lawsuit Contents

The lawsuit names the parties and where they live or, if it’s a business, where it’s located. Then, it gives a statement of how the defendant hurt you, including the legal basis for fault, which is ordinary negligence, a legal term for carelessness. It might also include details of how badly you got hurt. Your lawsuit will state specific grounds for which you seek a settlement, called damages.  Damages include medical bills, lost wages, and human loss. If you’re married, your spouse has a case for the damage caused to your marriage, called “loss of consortium.” If it’s a case that might justify punitive damages, a request for that will also be included in the lawsuit.

Before we file a lawsuit, we give a draft to our clients so they can confirm we accurately stated how they got hurt. Because the lawsuit contains a lot of legalese, we also explain that to them.

Filing the Lawsuit

Once our client approves the lawsuit, we file it. In both state and federal courts, lawsuits are filed electronically through a computer system.

That brings me to the question of whether we file in state or federal court. We usually file in state court because most of our lawsuits involve people and businesses located in South Carolina. You can’t file in federal court just because you want to. Federal court requires “diversity of citizenship,” meaning every other party but you is located outside South Carolina. Federal court has a minimum “jurisdictional amount,” meaning we can only file there if we think the case is worth over $75,000. If your case involves an 18-wheeler accident or a defective product involving companies outside South Carolina, we might file it in federal court. Federal court also has different administrative requirements, namely reports that must be filed with the court and scheduling orders with strict deadlines for various phases of the case.

The lawsuit is filed when the clerk marks it with an official stamp showing the time and date it was filed.

Service

After your lawsuit is filed, it gets served on the defendants. This means they are officially notified of the lawsuit as required by law. The law requires the lawsuit to be given to the defendant or someone legally allowed to take the lawsuit on their behalf. It can be given to them personally by someone authorized by law or mailed a specific way, usually certified mail return receipt requested. In car, motorcycle, and truckers accident cases, if your case involves your under-insurance or un-insurance coverage, we have the lawsuit served on your insurance company through the Department of Insurance.

Once it is served, the defendant has 30 days to respond to the lawsuit. If the defendant fails to respond in time, they can be held in “default.” That means the court rules the defendant admitted everything in your lawsuit, entitling you to a verdict called a “default judgment.” But beware of this shortcut because it could come back to bite you. The reason is that if the defendant failed to give the lawsuit to their insurance company, default can actually defeat coverage in certain situations. You need an experienced South Carolina personal injury attorney to guide you through how to proceed in this situation.

Once served, most defendants do the right thing and give it to their insurance company, which provides a defense attorney. Then, the wheels really begin to turn.

The Defendant Responds With an Official Answer

The defendant’s official response to the lawsuit is called the “answer.” It usually contains a head-spinning laundry list of defenses. We call them excuses. They start with (surprise, surprise) a denial, often followed by accusations of your comparative negligence and the false defense that punitive damages are unconstitutional.

That concludes the pleading stage. After that comes a long slog through a tedious phase called discovery.

Wondering how you could possibly handle filing a lawsuit without a lawyer? You’re barely getting started in the litigation process. Before it’s too late, get guidance from a Spartanburg, SC accident injury attorney. Call me toll-free at  (864) 582-0416 or fill out a Get Help Now form.

The Discovery Phase of a South Carolina Personal Injury Lawsuit

“Discovery” is exactly what it sounds like. Both sides give each other evidence so they can discover the evidence everyone will present. This phase has a couple of sub-phases, including:

• Written discovery. It starts with all parties sending each other a list of questions, called “interrogatories,” and requests for evidence, called “requests for production of documents.” Each side has 30 days to respond. It contains a lot of questions, and it requires some work on your part to answer them. As your accident injury attorneys, we are in charge of getting the answers right, so we work together as a team to help you answer them.
• Depositions. This is out-of-court sworn testimony. It’s a preview for the parties to see what everyone will say in court. For you, it’s a chance to tell your story of what the defendants did to you, plus how they did it. It’s a critical day because the defense is eyeballing you for how good of a witness you will be. We spend plenty of time getting our clients ready for their deposition so you’ll be as comfortable as possible during the questioning. The defendants have to answer our questions too. It’s a critical way to prepare for trial so we can see if they will admit wrongdoing, and if they don’t, what their excuse for it is so we can begin to pick it apart.

This is typically where we see the most legal wrangling. Defendants don’t like to answer discovery on time, and they also like to withhold information, especially if it hurts. That requires pestering them to answer the written discovery fully. Sometimes, we have to ask the court to order them to give us evidence in a “motion to compel discovery.” in others, we’ve asked for sensitive corporate information, so they ask for a “protective order” preventing us from using it outside the case. These are usually complex issues and can sometimes make our use of the evidence too restrictive, so we have to review them carefully and balk at provisions that could hurt your case.

Ordinarily, after several months in this phase, your case moves to one of the most important phases: mediation.

The Mediation Phase of a South Carolina Accident Injury Lawsuit

“Mediation” is a court-ordered process where the parties hire another lawyer who’s experienced in the type of case you have to get them to work together to settle it. The mediator can’t order you to do anything: think of mediation as your day to control the outcome of your case, whether mediation ends in a settlement or not.

The mediator gets paid by the hour, split between the parties. Ideally, the mediator is neutral in the case, familiar with the specifics of your case, and motivated to help both sides think about what could happen at trial. These factors help the parties reach a settlement, preventing the expense and risk of trial.

This phase also contains sub-phases, including:

• Picking the mediator. As with everything in the court process, picking the mediator is negotiated between the parties. Mediators are like any lawyer: some are good, some are not. Some are biased toward plaintiffs or defendants; some are not. My criteria for a mediator is they work hard, speak up, and the other side will listen to them. Hardworking mediators don’t just exchange settlement dollar amounts between the parties. They speak up to give their opinions on settlement value and the impact of various factors in the case. The best mediators make us think about our case, sometimes including factors we haven’t considered, making clients feel they’ve got all the information necessary to make the right settlement decision. And because the other side respects them, the insurance company will listen when the mediator points out problems with the defense to justify paying more.
• Mediation summary. I send a summary of the major factors in your case to the mediator to help them evaluate the settlement value. I also send it to the defense, because mediation is the time for us to lay down all, or nearly all, of our cards to achieve a good settlement. Many times over the years, I’ve been complimented by both defense lawyers and mediators on how my summary helped them achieve a better settlement for my client.
• The mediation itself. This is a meeting that occurs at the mediator’s office or one of the lawyers’ offices. I tell my clients to expect a full day. Many times, we get it settled before the workday is done.

When mediation fails, you move to the final phase.

The Trial Phase of a South Carolina Personal Injury Case

If mediation fails, you get ready for trial. This requires a lot more money, a lot more time, and a whole lot of hard work.

The additional money gets spent on trial exhibits and doctor depositions. We may need to get expensive blowups of pictures or even highly expensive medical illustrations graphically detailing the extent of your injuries and operations in living color.

Doctor depositions are videoed because getting a doctor to testify at trial is extremely hard. The truth is, when your trial rolls around, they may have a life to save. These depositions cost thousands of dollars because they take up a lot of a doctor’s time. It also takes a long time to schedule them because doctors don’t have a lot of time to give, so you generally have to go several weeks into the future to find a few hours when they can testify about your case.

As for the lawyers, we are reviewing all the evidence to prepare opening statements and closing arguments for the jury. We are going through the depositions of the defendants to prepare a cross-examination of them at trial. We are also contacting your witnesses to prepare them. And then there’s the most important witness, you. You get a memo of the questions we intend to ask, and we go over that testimony well before you sit on the witness stand so you can do the best possible job.

This only scratches the surface of what goes into trial preparation. And there’s so much more to how it all works; you can read about South Carolina personal injury trials here. Just know this: When trial rolls around, we will be ready and so will you.

If you’re worried about what lies ahead in your South Carolina accident injury case, get peace of mind. Call me toll-free at  (864) 582-0416 or fill out a Get Help Now form.

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