Ep. 150: Inside Litigation: Pleadings, Deadlines, and Firm Resources

Clark: I’m Clark Speaks, the catastrophic injury lawyer. Welcome to the verdict. Jeff, I want to talk to you a minute about. Uh, we’ve talked about the litigation process, and we’ve talked about how, um, uh, what’s involved in the litigation process and what people need to think about and look for in their. In their litigation. Attorneys and law firms. Um, let’s talk about pleadings. Uh, what are pleadings?

Jeff Watson: So pleadings are where to initiate a case. Uh, somebody who’s been injured, their lawyer would file a complaint, which is basically a document that lists the facts. You know, here’s what happened. There was, on this day, there was an accident. And, you know, here’s the plaintiff, and here’s the defendant. Uh, and then here’s the things that the defendant did to cause harm to the plaintiff. Here’s the damages that the plaintiff has suffered. And we asked the court, uh, for a jury trial and to award these damages to our client. Uh, and then the, you know, we. We take that complaint, we file it at court, and then we have it served upon the defendant. And there’s rules to that as to how you’re supposed to do that. If you do it wrong, your case can get thrown out.

Clark: And then, uh. And then what. What does the defense, uh, do in response to that complaint?

Jeff Watson: So when the. When the defendant gets served, typically, uh, they’ll. They’ll go to their insurance company, um, and the insurance company will. Will hire a defense lawyer. This is somebody that defends claims. They represent the insurance company all the time.

Clark: You and I have both done this kind of type of work.

Jeff Watson: In fact, we have done this kind of work. Uh, and, uh, most of the lawyers at our firm have done this kind of work at some point in prior. In their commute, in their career, which is helpful because it helps you understand what the insurance companies are trying to do. What they’re.

Clark: What they’re thinking, what they’re thinking.

Jeff Watson: We can kind of anticipate all that stuff ahead of time. So they’ll file. Then they’ll file an answer which basically. Which each paragraph in the complaint, they’ll basically respond to that. And then they’ll file that with the court and serve that on us. And now that’s the pleadings phase. And sometimes when they send it to us, they have allegations against our client. Like, they may say, well, your client was at fault. So then we have to file another pleading with the court in response to that within a certain time period. Uh, if we. If we don’t within that time period, then we can’t anymore. Uh, and that can be fatal to a case. So we want to respond with that, that second, uh, pleading that we filed with the court, basically saying our client wasn’t at fault. Uh, but if they were, your guy, you know, had had the last chance to avoid the accident or different things that there’s different things you can respond with.

Clark: Okay, so is, um, one complaint just like another, or is there some opportunity, uh, for lawyers to provide exceptional, uh, uh, value for their clients during the litigate, during the, uh, pleadings phase?

Jeff Watson: Definitely. I mean, there are cases out there where complaints were thrown out because they, they weren’t specific enough or they named the wrong parties. We see that a lot of times. Sometimes they, they’ll leave a key defendant out and then they can’t get them in later. Um, and that’s fatal to the case. Uh, you know, I was taught early on by my mentor, a really good trial lawyer in, uh, Winston Salem, uh, who taught me, you know, when you’re filing, when you’re making these paragraphs in the complaint, don’t just throw everything in each paragraph. Like, you know, like you’re, uh, you know, making cookies and you just throw everything in the batter. He said that. Because they’re going to just come in and deny every single paragraph and it’s going to be pointless. Your complaint will have done, accomplished nothing. What you want to do is plead as many things as you can that are key facts that they have to agree with, like the plaintiff lives here, the defendant lives here. On this date, the defendant was driving this car. He was on this road. The plaintiff was on this road. They were going opposite directions. You know, you want to break it down so that you’ve got as many admissions by the other side like they’re admitting to those paragraphs as you can. And then you have your conclusory paragraphs. The defendant was at fault. He did this, this, this, this, this. You know, they’re going to deny those. Uh, but you’ve got them to admit a lot of facts. You know, so there’s things like that in a complaint you can do that, um, you know, that, that get you down the road further rather than just slapping out a complaint and having them deny the whole thing, and then you’ve accomplished nothing.

Clark: So in terms of, you’re talking about the pleadings, uh, are these time sensitive? Uh, these, uh, answer, uh, I mean, the complaint, the answer, and then our responsive pleadings, uh, to their, any allegations they may have made in their answer.

Jeff Watson: There are rules to that. Um, you know, if we don’t File our complaint before the statute of limitations runs, which in North Carolina on personal injury claim is three years. Other states have. Tennessee has a one year statute. Uh, Virginia has a two year statute. Uh, different states have different, different lengths of time that you have to be able to file that lawsuit and preserve that claim. If you don’t file the lawsuit and the time period runs, the statute runs, then your case is over. Uh, so we’ve got to get the lawsuit filed, you know, in time. We’ve got to get them served. And then when they respond with an answer, usually they have 30 days to answer our, our complaint. Uh, they can file for a 30 day extension of time, which would give them 60 days. They uh, might get a little bit more time if we send our written discovery with the complaint, but there are some time limits on that. And then when they serve us back, uh, an answer, if it has allegations that we need to respond to, then we, you know, we have a limited period of time to respond to that as well. So you got to know the rules or, you know, it can, it can mess you up.

Clark: And so those, uh, those, the allegations that we make in the complaint, um, uh, and their answer, that sort of sets the framework for this dispute. Right? This is our theory of liability. This is, uh, where we want to pursue this claim. This is, uh, why you owe money to this plaintiff and how much money you owe. It’s, uh, not, is it specific as to how much money, uh, the uh, defendant owes?

Jeff Watson: Uh, no. Typically it used to be that you would say an amount in excess of 10,000. Now the rule is 25,000amount. Um, if you. There’s actually case law. I actually dismissed the complaint. Uh, when I was doing insurance defense, I actually had a complaint dismissed because the plaintiff put in there, I want, you know, $3 million. They put a specific amount in there. And there’s case law that says you can’t do that. Like you can only say in excess of 10,000 or now in excess of 25,000, actually had that complaint tossed. Um, and there’s a whole string of cases out there on that.

Clark: So in terms of where a case is filed, does that matter?

Jeff Watson: It does, because not every county is the same. Not, um, every state’s the same for that matter. Um, you know, you’ve got states that, uh, or you know, more liberal and not necessarily politically, but just, you know, in terms of what they would give in a jury verdict. You have counties in North Carolina, there are some that give a lot more money than other counties. Um, and so you’ve Got to know what your jury pool is going to look like in that particular county. Um, you know, and so we’re constantly trying to, you know, do jury verdict research to figure out, uh, in this kind of a case, what will they award in Pender county, what will they award in Mecklenburg county, what will they award in Forsyth County? Uh, and so we’re looking at that and figuring out which county’s gonna be best for our client.

Clark: So this is something that I think is interesting. Uh, you know, uh, 20 years ago, uh, uh, I don’t know, 20 years ago, I had a small firm. It was just me, you know, and when I would see other firms that were bigger, it always occurred to me, just because you’re bigger doesn’t mean you’re better. That’s just not. It’s not. That’s not, that’s not rational. Um, but as we’ve gotten bigger and now we are, we’re, you know, you know, probably 50 employees and, you know, lots of lawyers and that kind of stuff. And, uh, one thing that does, that does cause me to go, you know what? There is an advantage to be in a bigger firm, and that is the resources that we have available. Um, whether it’s a collaborative group that’s able to think through, uh, challenges, strategy, um, that sort of thing, or whether it’s having the resources to, uh, do the kinds of, do the investigation, whether it’s a factual investigation or a jury, uh, verdict, research, investigation, those types of things. Um, those types of things are, ah, expensive. You have to have the relationships. You have to know what you’re looking for. Can those things be advantages? Is there an advantage to having a firm with those kinds of resources and those kinds of experiences and relationships and connections in this context? Yeah.

Jeff Watson: I mean, I, I used to have a firm and I practiced by myself and it was, uh, you know, at times, you know, I wish there was somebody else there that we could bounce ideas off of. You know, uh, so that’s a. That’s, you know, we have that. We have a lot of lawyers and they’re all participating in these cases and, you know, we’re bouncing ideas off each other. But also, you know, if we need to hire expert witnesses for our client’s case to make the case, it may make or break the case to have the right kind of expert. Uh, our clients, a lot of times, you know, they’ve been hurt, they’re out of work, they don’t have money to pay for these experts. Um, you know, they’re in a financial strain. Uh, and so you know, if I’m in a small firm and I don’t have the money to advance to pay that expert to help my client, that really hurts my client.

Clark: Um, so, you know, nobody’s going to come to you and say, hey, we were thinking about using this expert, but we don’t have the money. They’re just not going to get the expert.

Jeff Watson: You’re just not going to get the expert.

Clark: And then, uh, one thing that also is true without these sort of, uh. And we have relationships with lawyers, really phenomenal lawyers all over the country, some of whom will probably be on at some point, um, that uh, we connect with and collaborate with to try to figure out what different ways of telling our client’s story more effectively. Um, and uh, I’m just thinking about some of the different experts that we’ve used through this process that if we didn’t have that, the relationships or the resources that we have, we would never have been able to do that. Um, you know, I remember a case that we had recently where we had, uh, the experts that we had were included. Um, and tell me if I’m leaving anybody off, uh, an accident reconstructionist, uh, biomechanical, um, engineer, economist, uh, probably, I don’t know, multiple, uh, medical experts, uh, including the medical expert to demonstrate future medical needs. Um, uh, and then recently we’ve added, um, we’re uh, trying to get, ah, a. What is this, a phthonologist or something?

Jeff Watson: Thanatologist.

Clark: Thanatologist.

Jeff Watson: Right.

Clark: I didn’t even know it was a thing.

Jeff Watson: Yeah. So specialist in grief. Uh, they can help quantify grief when people. In a wrongful death case. We’ve also used, um, EMS experts that we brought in from out of state, um, to testify on the procedures that you would do in an EMS case when they’re picking up somebody that’s hurt at their house.

Clark: The elevator experts. Elevator experts here recently in a few cases. And so what’s the significance of. Why is that important to be able to have access to that kind of professional in this situation? Uh, what is it? If I’m a, if I’m a client, if I’m a injured person and I’m, uh, thinking through these things from a legal perspective or. And for how it’s going to impact me and my family, what do I care about all these experts? That sounds like a bunch of lawyer stuff that’s going to, that’s just going to, uh, not make any difference to me personally or to my family, Is it.

Jeff Watson: I mean, it can make or break a case if you, if you don’t have the expert. Like, I mean, I can point to somebody, uh, and say, well, I think, I think your elevator was messed up. Well, prove it. I, I don’t know how to prove it. I mean, my client doesn’t know how to prove it. We don’t know anything about elevators. So then you get in and push the button and go up and down. That’s why you gotta have the expert. They can go in there and look and figure out exactly what went wrong and who should have fixed it. And that either makes or breaks the case. Also think about, you know, we have an investigative team of uh, uh, we’ve got several ex law enforcement people that work for us who go out and do investigations. They get pictures of scene, they talk to witnesses, they uncover evidence, they uncover, uh, extra insurance policies. If you’re a small firm, you don’t have an investigative team, you can’t afford to have an investigative team. And then all of those things they’ve uncovered are not uncovered. Uh, that’s a problem.

Clark: Jeff, thank you for talking to me about this topic. We’ll be back. Thanks for joining us. Don’t forget to subscribe and follow us to stay up to date with our weekly episodes. We’ll see you next time.

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