Lawsuits

Find information about resolving a claim or dispute in court.

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What is a lawsuit?

A lawsuit is a claim or dispute brought to a court of law to resolve.

What is the difference between civil and criminal cases?

Criminal cases deal with violations of the criminal law, such as assaults or theft. Criminal cases are usually brought by law enforcement and are managed by a prosecutor, an attorney who represents the government. A person found guilty in a criminal case faces consequences such as jail time, probation, or fines. See the Criminal Cases Help Topic for more information. On the other hand, civil cases deal with a wide variety of private disputes, from breach of contract to child custody. In civil cases, one party may have harmed or failed to abide by its obligations to another, or two parties may have a dispute for the court to resolve. Civil cases can result in an award of money or in a court order to enforce or protect the rights of a party.  

What is the difference between District Court and Superior Court?

North Carolina’s trial court system has two divisions: District Court and Superior Court. Both divisions are generally located in the same courthouse in each county, but have different judges. The Superior Court division handles civil cases involving a claim for more than $25,000, as well as felony criminal cases. The District Court division handles civil cases involving a claim for $25,000 or less, all family and juvenile cases, misdemeanor criminal cases, and infractions such as traffic tickets.

Who are the “plaintiff” and “defendant”?

A “plaintiff” is a person who files a lawsuit. A “defendant” is a person that a lawsuit is filed against. One lawsuit can have multiple plaintiffs and multiple defendants.

What are a “complaint,” “answer,” and “counterclaim”?

A “complaint” is the document a plaintiff files to begin a lawsuit. The complaint states what the plaintiff claims the defendant has done and the remedy that the plaintiff is requesting. Typically, the defendant has 30 days to respond by filing an “answer.” An answer includes the defendant’s responses to the plaintiff’s allegations and any defenses. If the defendant also has a claim against the plaintiff – for instance, if the defendant believes that the plaintiff is actually the person who owes money – the defendant may state his or her own claims in a portion of the answer called a “counterclaim.”

How long do civil lawsuits usually last?

This depends on the type of case, the willingness of both parties to settle the dispute, and the complexity of the evidence and legal issues involved. Many cases filed in small claims court are resolved on the first court date.

Do all civil cases go to trial?

No. Very few civil cases go to trial. Most cases are settled before trial, either through an agreement negotiated by the parties’ attorneys, or through mediation or arbitration. Arbitration is an alternative method of resolving a dispute through an informal legal proceeding that is required in many district court cases. Mediation is a guided conversation that can help parties settle legal disputes themselves. See the Arbitration and Mediation Help Topic for more information.

Are all civil trials before a jury?

No. Parties may have the right to request a jury trial, or the court may hold a “bench trial,” meaning that a judge hears the evidence and decides the case. In some types of cases, such as child support and child custody, all trials are held before a judge.

Filing a Lawsuit

I want to sue someone. What should I do?

Most people considering a lawsuit begin by contacting an attorney to discuss the case. An attorney can advise you on the possible outcomes of your case and the amount of time and costs involved. See the Find an Attorney Help Topic for more information.

In some cases, you may wish to file your lawsuit on your own in small claims court. The limit on the amount of money a person can request in small claims court varies from $5,000 to $10,000, depending on the county. See the Small Claims Court Help Topic for more information.

Do I have to hire an attorney for a lawsuit?

People can represent themselves (known as proceeding “pro se”), but this can be difficult, especially in complex cases. If you choose to represent yourself, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

Can I represent my company in court?

Companies are legally required to hire an attorney to represent them. There is an exception for small claims court and appeals from small claims to District Court; in these cases, companies can be represented by a non-attorney agent such as an owner or employee.

Do I have to pay to file a lawsuit?

In general, yes. If you are unable to pay the costs of court, you can ask to file as an “indigent,” meaning that you are not required to pay court fees in advance. You can find the necessary form here.

How long do I have to file suit?

The amount of time you have to file your lawsuit (known as the “statute of limitations”) depends on the type of case. An attorney can give you more information about the limit in your specific case. You can view the law on statutes of limitations in general here and in cases involving real property (land) here.

Should I file my lawsuit in small claims, District Court, or Superior Court?

Cases for money damages are divided depending on the amount of money involved. Small claims court handles cases where the plaintiff requests less than $5,000 or $10,000, depending on the county’s specific rules. District Court handles the remaining cases where the plaintiff requests $25,000 or less. Superior Court handles cases where the plaintiff requests more than $25,000. All family court cases are heard in District Court. All cases challenging state laws are heard in Superior Court.

What county should I file suit in?

In which county to file your suit depends on a number of factors, including where the dispute arose and where the parties reside. In small claims court, the case must be brought in the county where the defendant lives. There are specific rules for cases concerning land or involving businesses. You can find more information about where cases should be filed here.

Are there standard forms I can use to file a lawsuit?

In general, there are not standard forms in North Carolina to file a lawsuit. Exceptions include complaints for eviction, small claims cases, and Domestic Violence Protective Orders (see the relevant Help Topics).

How do I serve the other party?

The plaintiff is responsible for ensuring that a copy of the complaint is served on the defendant. If you have an attorney, your attorney can handle this for you. In general, service is carried out either by paying the sheriff a $30 fee to personally serve the defendant, by mailing a copy of the summons and complaint to the defendant by certified mail, return receipt requested, or by some other method authorized under Rule 4 of the North Carolina Rules of Civil Procedure. If the defendant cannot be found, the plaintiff may be able to serve him or her through publication in a newspaper, but specific requirements apply. The plaintiff must file with the court proof that the defendant has been served.

Will my case automatically have a trial date?

Most lawsuits are not automatically assigned a trial date, unless your case is on appeal from small claims court. Instead, a plaintiff or defendant who wants the case to be heard must arrange a date with the other party and the Trial Court Coordinator and file a Notice of Hearing. A copy of the Notice of Hearing must be served on the other party as authorized by Rule 5 of the North Carolina Rules of Civil Procedure.

The Court Process

I have just been sued. What do I do?

You should immediately contact a lawyer. You will typically need to file an answer to the plaintiff’s complaint within 30 days. Failure to file your answer in the required time period could result in a judgment being entered against you by default. See the Find an Attorney Help Topic for information about how to find an attorney to represent you in your case.

Will a lawsuit against me go on my criminal record?

Lawsuits are civil, not criminal, and will not appear on your criminal record. However, lawsuits are public record. Some types of cases may appear in some background or credit checks, and an unpaid judgment on record with the court will be reported to credit bureaus.

Are documents filed with the court open to the public?

In general, yes. Except in juvenile, adoption, involuntary commitment and some other proceedings wherein cases or certain court filings are confidential by statute, documents filed in court cases are generally public record. Sensitive or confidential documents may be kept “under seal”, upon request by a party, so that only authorized people can see them. In general, the judge has the authority to decide whether or not to seal the documents.

How can I find my court date?

Some counties post their civil court calendars here. If you are not able to find your court date, you can contact the Clerk of Superior Court’s Office in the county where the case is being handled.

What is a continuance?

A continuance is a postponement of a case or of arguments on a specific issue until a later court date.

What happens if I miss a court date?

This depends on the circumstances. If you miss a trial date, the case could be dismissed (if you are the plaintiff) or heard without you (if you are the defendant). If you have an attorney, your attorney will let you know if there are court dates you do not need to attend, for instance, because the case is scheduled for legal arguments that your attorney will handle for you. If you are unable to attend a court date, you should immediately contact your attorney. With advance notice, you can file a motion to continue the case. A party should review the county court’s local rules prior to filing a motion to continue.

Can I be arrested for not following a court order?

If you violate or choose to not obey a court order, you can be held in contempt of court. Penalties for contempt of court can include jail time and fines. Before you can be arrested, you will receive notice of a hearing (through a Motion for Order to Show Cause, Motion for Contempt, or other formal notice) stating that the other party plans to ask the judge to hold you in contempt of court. You will have the opportunity to present a defense, and you can request a court-appointed attorney if you cannot afford to hire an attorney.

Discovery

What is discovery?

Discovery is a process in lawsuits that allows parties to legally demand documents and information related to the lawsuit from each other in advance of a trial. Discovery allows the parties to learn more about the facts of the case and expected witness testimony and provides evidence that can be used in trial. Interrogatories, requests for production of documents, requests for admission, and depositions are all forms of discovery. You can view the rules for discovery here. Note that criminal cases have a different process for discovery.

When does discovery happen?

Once the complaint has been filed, either party may serve discovery requests on the other party together with or after service of the summons and complaint without need for permission from the judge.

Does discovery happen in all cases?

No. Discovery happens in cases in which a party or, typically, a party’s attorney, chooses to send discovery requests to the other side. Discovery is often expensive and may not be necessary in some cases, but complex cases typically involve a period of pre-trial discovery.

What is a deposition?

A deposition is a formal questioning of a party or witness by the attorney for the other side. Depositions are sworn testimony, typically taken in person with attorneys for both sides and a court reporter present. Depositions usually happen in an attorney’s office or neutral conference room. A party that wants to take a deposition must send notice to the other side. Witnesses can be required to attend through a subpoena.

What happens if a party receives discovery requests but does not respond?

If a party fails to respond to interrogatories, requests for production, or questions in a deposition, the other party can ask the court for an “order to compel”.  Failure to comply with an order to compel may result in sanctions or payment of attorney’s fees related to obtaining the order.

Judgments and Collections

What is a judgment?

A judgment is a court’s decision about the parties’ rights and obligations in a case, including the amount of money one party must pay the other.

Can the parties to a lawsuit agree on a judgment?

Yes. Parties can sign a “consent judgment.” Once a judge also signs the agreement, this becomes a court order.

If I win my case, can I get the other side to pay my lawyer’s fees?

This depends upon the type of case. There is no automatic right to attorneys’ fees in a civil case. Your lawyer can explain whether you can request attorneys’ fees in your case.

Once a judgment for money owed is entered, how is the judgment satisfied?

Many people reach an agreement about the terms of payment after the judge or jury decides how much money one party must pay the other. If there is no agreement, the winning party can begin the collections process. The clerk of court will record the judgment, and interest will begin to accrue if the judgment is not paid.

  • Before a writ of execution can be issued by the clerk of superior court, a Notice of Right to Have Exemptions Designated must be served on certain defendants (judgment debtors), along with a Motion to Claim Exempt Property. This allows a person to protect certain basic property from being seized and sold to pay the judgment. The other party has 20 days after he or she is served to file the Motion to Claim Exempt Property with the court or request a hearing before the clerk of superior court. The clerk of superior court determines whether a defendant is entitled to claim statutory exemptions.
  • After a Motion to Claim Exempt Property is filed, a plaintiff has 10 days to object to property claimed as exempt. A hearing on any objections is heard in front of a judge, who determines what property is exempt. Once the time period has elapsed allowing an eligible judgment debtor to claim property as exempt, the plaintiff (judgment creditor) may request the clerk of superior court to issue a writ of execution for non-exempt property, which allows the sheriff to collect and sell property from the other party to pay the judgment.
How should judgments be paid?

The person required to pay a judgment can pay the clerk of court to ensure that the court has a record of the payment. Paying the other party is also an option. A party who receives payment directly from the other party should file a Certificate of Payment with the court as proof that the judgment was paid.

What happens if I don’t claim statutory exemptions, if eligible?

If you are not eligible to claim or if you fail to claim statutory exemptions, the plaintiff may request that the clerk of superior court issue a writ of execution, allowing the local sheriff to seize and sell non-exempt property to pay the judgment. You can still claim limited constitutional exemptions using this form. However, constitutional exemptions only allow $1000 in real property (such as land or homes) and $500 in personal property (such as vehicles, furniture, appliances, and other items) to be protected.  Eligible parties who fail to claim statutory exemptions lose the right to protect the additional property provided for by statute.

Can I get legal assistance with a Motion to Claim Exempt Property?

An attorney can assist you in filling out the Motion to Claim Exempt Property. See the Find an Attorney Help Topic for a list of organizations that provide free legal services to people who are unable to afford an attorney.

Can I be arrested for not paying a judgment?

In general, no, you cannot be arrested for failing to pay a money judgment ordered by a court. Exceptions include criminal court fees that you must pay through probation and child support or other family court orders.

Will my wages be garnished to pay a judgment?

No, North Carolina does not allow a winning party to take money to pay the judgment out of the other party’s wages, except in child support cases.

What is a supplemental proceeding?

A supplemental proceeding is a method of enforcing a money judgment that a judgment creditor has not been able to satisfy through execution.

Appeals

What can I do if I believe the outcome of my case was wrong?

In some limited cases, you can file a notice of appeal and request a new trial. For instance, cases first heard in small claims court can be appealed to District Court, and some cases first heard by clerks of court can be appealed to be heard by a judge. Once a non-criminal case is decided by a district or superior court judge, a new trial is generally not an option and appeals can be filed only to the North Carolina Court of Appeals, and perhaps to the Supreme Court of North Carolina.

How do I file an appeal to the Court of Appeals?

You can begin the process by filing a notice of appeal with the trial court within 30 days of the trial court’s final order. A temporary order before the case is finished cannot be appealed. There is not a standard form for the notice of appeal. It may be necessary to hire an attorney to represent you in an appeal, because successfully appealing depends on following specific rules and making the correct legal arguments. You can view North Carolina’s Rules of Appellate Procedure.