Most people hear the word litigation, and they automatically envision a courtroom with a judge and a jury. Likewise, they hear trial lawyer and assume that refers to the attorney who will carry the case from filing all the way through trial. In some cases, these things are true, but in many more instances, they are not. Trial attorneys and litigation attorneys provide different, but equally important services. To help clear up the confusion, here’s a brief overview of each of these legal professionals.
To learn more about the litigation process, please click HERE.
To fully understand the role of litigation attorneys, you need to understand that not all lawsuits go to trial. In fact, the overwhelming majority of lawsuits are resolved out of court thanks to the work of litigation attorneys.
Litigation attorneys handle all the work that goes into prosecuting or defending a lawsuit long before it ever gets to the trial phase. Litigation attorneys are responsible for client relations, filing and responding to lawsuits, conducting research, interviewing witnesses, handling discovery and filing and arguing motions, all of which is aimed at keeping the case from ever going to trial.
Trial attorneys differ from litigation attorneys in their area of focus. Many trial lawyers are generalists. That is, they do not focus in specific areas of law like litigation attorneys do. Instead, a trial attorney’s strength lies in his or her ability to present a case in front of a judge and jury. Trial attorneys rely on the research and knowledge of the litigation attorney who has been handling the case to help them develop it for the trial. In the courtroom, the trial attorney is the one who will make statements, ask questions of witnesses and present evidence.
At Moffatt & Moffatt, we provide the services of both litigation and trial attorneys; however, we pride ourselves on being excellent litigation attorneys because we understand the value of avoiding the costly exercise of a trial.
At Moffatt & Moffatt, we provide the following litigation legal services:
The North Carolina Civil Litigation Process
The Court System
In North Carolina, there are three levels of trial court that handle civil litigation: (1) Small Claims/Magistrate Court; (2) District Court; and (3) Superior Court. The primary factor which determines which level is appropriate concerns the amount in controversy.
Small Claims/Magistrate Court is the lowest level, handling disputes involving up to $10,000. District Court is the next level, which handles disputes up to $25,000. Superior Court is the highest-level trial court in North Carolina, which handles disputes over $25,000.
Stages of Civil Litigation
There are six main stages in any civil litigation filed in either District Court or Superior Court:
Pleadings and Preliminary Motions Stage
Pleadings are the formal documents filed with the court which state: (i) the parties’ factual allegations; (ii) causes of action; and/or (iii) defenses to the causes of action. The most common pleadings are the: (i) complaint; (ii) answer; (iii) counterclaim; (iv) reply; (v) cross-claim; and (vi) third-party complaint.
The complaint is the document which initiates a lawsuit and sets forth the allegations made by the plaintiff (the party who initiates the lawsuit) against the defendant (the party against whom the lawsuit is filed). After the complaint is filed and delivered (known as “service”) to the defendant, the defendant has 30 days within which to respond to the complaint. In addition to the 30-day response period, the defendant is also entitled to one 30-day extension of the response period.
The defendant’s response to the complaint is known as the answer. The answer sets forth the defendant’s reasons (known as “affirmative defenses”) why the defendant contends the plaintiff’s allegations are either untrue or that the allegations do not support the relief requested by the plaintiff in the complaint.
In addition to the answer, the defendant may also file a counterclaim. A counterclaim is tantamount to a complaint by the defendant against the plaintiff. Much like the complaint, a counterclaim sets forth the allegations by the defendant against the plaintiff (sometime referred to as a “counter-complaint”).
A plaintiff’s response to a counterclaim is known as a reply (i.e., it is the plaintiff’s answer to the counter-complaint).
Any party to a lawsuit may also file a cross-claim. A cross-claim is a claim brought by a party to an ongoing lawsuit against another party to the same lawsuit but that is on the same side of the “v” in the ongoing lawsuit (i.e., such as when a defendant sues another defendant).
Finally, any party to a lawsuit may also file a third-party complaint. A third-party complaint is a claim brought by a party to an ongoing lawsuit against someone who is not a party to the ongoing lawsuit (i.e., neither a defendant nor plaintiff in the initial complaint) who is or may be liable to the party for all or part of the claims against that party.
In addition to the pleadings, the parties may file certain motions at or near the time a response to the complaint is to be filed.
A motion is a written request to the court. For example, a defendant may file a motion to dismiss the complaint wherein it asks the court to dismiss (i.e., to throw out) the complaint. The basis for motions to dismiss can vary widely depending on the facts and circumstances contained in the complaint.
These motions are typically heard before a judge prior to the defendant having to file an answer to the complaint. In other words, the court will determine whether the complaint states a valid claim against the defendant before requiring the defendant to answer the complaint.
In addition, at this time, a plaintiff or defendant may file a motion for temporary relief, such as a motion for temporary restraining order or motion for preliminary injunction. The purpose of these types of motions is to prevent a party from taking some action or alternatively to compel a party to take some action, pending the outcome of the lawsuit.
Discovery Stage
The discovery stage describes the length of time in the litigation in which the parties will have an opportunity to request information about the allegations contained in the pleadings.
There are five main methods of discovery:
- Interrogatories
- Request for Production of Documents
- Request for Admissions
- Depositions
- Subpoenas
Interrogatories: These are written questions sent to another party to the litigation (not exceeding 50 in number) requesting certain information related to the allegations contained in the pleadings. Each side has 30 days to answer these questions once they are served; however, like with pleadings, each side is entitled to one 30-day extension of the response period.
Request for Production of Documents: These are also written questions sent to another party to the litigation, but instead, they ask for certain documents related to the allegations contained in the pleadings to be furnished to the requesting party. Each side has 30 days to answer these questions once they are served; however, like with pleadings, each side is entitled to one 30-day extension of the response period.
Request for Admissions: These, too, are written questions sent to another party to the litigation, but they ask the responding party to admit or deny certain facts related to the allegations contained in the pleadings. Each side has 30 days to answer these questions once they are served; however, like with pleadings, each side is entitled to one 30-day extension of the response period. If they are not answered in the required time frame, every question is deemed “admitted” by the court.
Deposition: This is when the parties to the Litigation are entitled to ask questions of either another party to the Litigation, or of a person who is not a party to the Litigation, under oath before a court reporter.
Subpoena: There are two (2) main types of subpoenas: (i) subpoenas seeking testimony; or (ii) subpoenas seeking the production of documents.
A subpoena seeking testimony is when a party to the litigation is seeking to compel a non-party to give testimony under oath either at a deposition or in court.
A subpoena seeking production of documents is when a party to the litigation is seeking to compel a non-party to provide documents to the party.
Alternative Dispute Resolution Stage
Alternative Dispute Resolution refers to a variety of processes that help parties resolve disputes short of going to trial. There are two types of alternative dispute resolution processes used in North Carolina trial courts: (i) mediation; and (ii) arbitration. The type of alternative dispute resolution depends on whether the case is in District Court or Superior Court.
In District Court, non-binding arbitration is the type of alternative dispute resolution utilized. An arbitration hearing is an informal legal proceeding held before a neutral court official called an arbitrator. The arbitrator renders a decision on the facts and issues in the case. At the hearing, each side can present witnesses and documents. After the evidence has been presented, the arbitrator will, like a judge, issue a decision in the case. Because in District Court, the arbitration is non-binding, either party has the right to refuse the decision of the arbitrator and instead elect to move forward towards trial. The arbitration is limited to 1 hour, with each side receiving 30 minutes to argue its case and present evidence.
In Superior Court, North Carolina has implemented mandatory mediation process. This means that the Court will order all the parties involved to sit down and try to settle the case. This is done in front of an independent mediator who will facilitate settlement discussions and help to try to resolve the dispute. It is mandatory that each party attend the mediation. Mediations can last a few minutes or can take all day depending on the case. The parties must pay the mediator for his time spent, and the fee is evenly divided between the parties. If the case cannot be settled, then litigation proceeds forward.
Dispositive Motions Stage
At any time after the Pleadings and Preliminary Motions Stage concludes, either or both parties may file what is known as a dispositive motion. A dispositive motion is a motion that will dispose of some or all of claims or the issues in the litigation.
Dispositive Motions typically take one of two different forms: (i) motion for judgment on the pleadings; or (ii) motion for summary judgment.
Motion for judgment on the pleadings asks the court to review the pleadings and nothing outside of the pleadings (such as information found during discovery or affidavits not contained in the pleadings), and to render a judgment in favor of the moving party.
A summary judgment motion asks the court to examine the record (including all matters found during discovery, including depositions, written discovery and affidavits) and determine whether any material questions of fact exist for a jury to decide. If the court determines that there are no material questions of fact for a jury, then the court will enter a judgment ending all or a portion of the litigation. In essence, a motion for summary judgment asks the court to rule in favor of the party filing the motion because the evidence in the record entitles the moving party to a judgment in their favor.
Trial Stage
Most trial court cases in North Carolina are resolved at the Dispositive Motions Stage. If the case is not resolved at the Dispositive Motions Stage, the next stage is the trial. A trial is where both parties present evidence primarily in the form of witness testimony. The outcome of the trial is made by the “trier of fact” which can either be a jury or a judge. The trier of fact is tasked with considering the evidence presented and then deciding on each cause of action based upon that evidence. If the trier of fact is a judge, the trial will commence earlier because in most jurisdictions, the list of cases waiting for a jury trial is quite long, and cases are heard by a priority list which is determined based upon how long the case has been pending.
Post-Trial Stage
After the trial, the court will enter a judgment which is a final order setting forth the outcome of each claim and the amount of any monetary award (i.e., who won and who lost).
After the judgment is entered, either party has the right to appeal the decision of the court by filing an appeal to the North Carolina Court of Appeals within 30 days following the entry of the judgment.
The steps involved in an appeal to the North Carolina Court of Appeals include:
- Notice of appeal must be filed within 30 days of the entry of the judgment.
- A contract must be signed, and payment must be delivered to the court reporter within 14 days of the filing of the notice of appeal for the transcript of the proceeding appealed.
- The court reporter charges $5.50 per page and the length of the transcript.
- From the date the court reporter delivers the completed transcript, which is typically 3 to 4 weeks after the signed contract is delivered and payment is made to the court reporter, the appellant (the appealing party) has 35 days to prepare, assemble, organize and index a proposed record on appeal which is served on the opposing party. The proposed record on appeal consists of all the documents which make up the case file.
- From the date the appellant serves the proposed record on appeal, the appellee (non-appealing party) has 30 days to serve requested amendments to the proposed record.
- From the date the appellee serves its requested amendments, the appellant has 10 days to either request judicial determination of the final record on appeal, or if the appellant agrees with the changes, it must wait until the 10 days expire.
- After the 10 days expire, the appellant has 15 days to file the final record on appeal with the North Carolina Court of Appeals.
- Once the record on appeal is filed with the Court of Appeals, the appellant has 30 days to prepare and file a written brief.
- Once the appellant files its brief, the appellee has 30 days to file its brief.
- After the appellee files its brief, the appellant has the option to file a reply brief within 10 days.
- Once both briefs are filed, the Court of Appeals will set a hearing date.
- The hearing date is typically between 3-6 months after the briefs are filed.
- The Court of Appeals decides whether it will have oral arguments or whether the appeal will be considered upon written briefs only. The Court of Appeals is located in Raleigh and hears all cases with a 3-judge panel.
- After the hearing date, the Court of Appeals will issue a written decision typically between 4-10 months from the hearing date.
- If the Court of Appeals rules in the appellant’s favor, the case is then remanded back to the trial court where the case picks up where it was left and head towards trial, or if the trial already occurred, then the judgment may be set aside
- If the Court of Appeals upholds the trial court order, then at that point, the Court of Appeals decision can either be accepted, or the decision can be appealed to the NC Supreme Court.
If neither party appeals the judgment, then the judgment becomes final after 30 days following the date the judgment is entered. Once the judgment is final, the party who prevailed then has the right to enforce the judgment. The procedures and mechanism by which a judgment is enforced vary depending on the contents of the judgment. In some instances, one can go through what is very similar to the discovery stage; however, the subject of the discovery is not the pleadings but instead the assets of the judgment debtor. If it is a judgment awarding some amount of money, the prevailing party can seek to levy (sell) certain assets of the losing party to satisfy the judgment, garnish wages, etc.
Real Estate Disputes
At Moffatt & Moffatt, we provide litigation services involving:
- Easement and access disputes
- Boundary line disputes
- Partition action
- Eminent domain/Condemnation issues and claims
- Adverse possession
- Quiet title actions
- Restrictive covenant disputes
- Trespass claims
- Trespass to timber claims
- Surface water diversion
Labor – Employment Disputes
At Moffatt & Moffatt, we provide litigation services involving:
- Civil rights discrimination
- Affirmative action compliance and claims
- State and federal wage and hour issues
- Wrongful termination charges
- Unemployment claims
- Breach of employment contracts
- Occupational safety and health matters
- Labor disputes, including matters involving:
- Equal Employment Opportunity Commission (EEOC) Investigations
- Family Medical Leave Act (FMLA)
- Fair Labor Standards Act (FLSA)
- Employee Retirement Income Security Act (ERISA)
- Americans With Disabilities Act (ADA)
- Title VII
- Equal Pay Act (EPA)
- OSHA and Workplace Safety
Construction Disputes
At Moffatt & Moffatt, we provide litigation services involving:
- Contract disputes
- Mechanic’s liens
- Financing and warranty issues
- Payment bond suits
- Bidding and document preparation
- Faulty construction
- Construction building defects
- Insurance issues
- Regulatory compliance
- Environmental issues
Commercial Disputes
At Moffatt & Moffatt, we provide litigation services involving:
- Breach of contract claims
- Breach of fiduciary duty
- Shareholder/partnership disputes
- Contract disputes and enforcement
- Governmental regulatory disputes
- Unfair trade practices
- Debtor/creditor and collections actions
- Mediation and arbitration
- Covenant not to compete disputes
- Judicial dissolution
Landlord – Tenant Disputes
The relationship between a commercial landlord and tenant in North Carolina is governed primarily by the terms of the lease. The lease defines each party’s rights and obligations with regard to the subject property and the other party. More importantly, the lease affords each party a degree of protection should the relationship fail.
On the other hand, the relationship between a residential landlord and tenant in North Carolina is governed primarily by Chapter 42 of the North Carolina General Statutes.
At Moffatt & Moffatt, we provide litigation services involving a broad range of disputes between both commercial and residential landlords and tenants.
Appellate Litigation
At Moffatt & Moffatt, we have experience representing both appellants and respondents in state appellate proceedings. We have handled appeals involving a wide variety of issues, including, but not limited to, insurance coverage, real estate, tort law, business disputes, premises liability and construction claims.
At Moffatt & Moffatt, we provide the following appellate services:
- Conducting the legal research necessary to evaluate and litigate the appeal
- Drafting appellate briefs
- Advising trial counsel of legal considerations for appeals
- Conducting oral arguments
- Filing interlocutory appeals
- Filing petitions for or opposing certiorari
- Drafting amicus curiae briefs