North Carolina Legal Frequently Asked Questions (FAQs)
When you or a loved one is injured in an accident, no one hands you a pamphlet containing all of the information you need to understand your case. In this section we strive to answer the basic questions that everyone has in the time following a car accident, on-the-job injury, medical malpractice, abuse, or other accident.
If you don't find the answers to all of your North Carolina injury questions here, we encourage you to contact our Raleigh injury lawyers for answers to questions specific to your case. The consultation is free and confidential.
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How Long Does It Take To Actually Get To Trial After A Lawsuit Has Been Filed in NC?
In most counties in North Carolina, where we practice, a lawyer who tries hard enough, can get their trial after a lawsuit within 1 year.
Nobody likes to go to court. At Brent Adams and Associates we try hard to settle our clients' cases without having to file suit and without having to go to trial. However, sometimes it is necessary to file suit and actually try the case.
When that happens, our client sometimes ask us how long does it actually take to get to trial.
All cases are different, and all jurisdictions are different. In some counties it takes longer to actually try your case than in other counties.
You may have heard about congested trial dockets which result in a delay in going to trial for 2 to 3 years after filing suit.
Some of the uncertainty concerning how long it will take to actually complete a jury trial arises from the way cases are calendared in North Carolina.
When a case is set for trial on a particular week, it is always set on Monday of that week. There may be 35 other cases also set for trial that same Monday. Obviously, all 35 cases cannot be tried within that week.
Most counties have only one judge to preside over that 1 week of trial. However, some counties such as Wade County and Mecklenburg County have more than one judge. Usually there are not more than three judges presiding over a civil calendar at any given week even in the largest counties in North Carolina. Because your case will be set during the same week 35 other cases are also set, your chances of actually getting to trial would depend upon how many cases are settled or continued.
While it may seem that 35 cases are a lot of cases for the court to handle, a large number of such cases are settled or continued.
We still maintain that a lawyer who tries hard enough should get his or her case tried within 1 year from filing suit.
Will Your Personal Injury Case Be Filed In State Court or Federal Court?
The vast majority of all lawsuits filed in the United States are filed in state courts. Federal courts have limited jurisdiction and will only hear certain kinds of cases.
Federal courts will handle cases against the federal government and certain other cases which arise under federal law.
The most common exception to the general rule that lawsuits are handled in state court is when there exists a diversity of citizenship. If a citizen of one state files a claim against a citizen of another state, the defendant who is sued may ask the federal court to remove the case from state court into federal court. Of course, the plaintiff can also file suit directly in federal court if there is a diversity of citizenship. Even when there is the diversity of citizenship, the amount in controversy must be at least $70,000.00 or the federal court will not hear the suit.
Most of the claims against manufacturers of defective drugs are handled in federal court because of the diversity issue.
What Happens If A Jury Cannot Agree?
In North Carolina all decisions by a jury after the trial of a case must be unanimous.
Imagine getting 12 people to unanimously agree on anything. It is very difficult. Nevertheless that is the law. All 12 must agree exactly on every issue submitted to it.
But what happens if the jury cannot agree?
If the jury cannot agree the judge will keep sending the jury back to deliberate for a period of time in order to encourage the jury to reach a unanimous agreement. During the process of deciding the issues in the case, there is usually give and take by jurors and each of the 12 must consider whether to compromise their position in order to reach a unanimous verdict.
If, after the court send the jury back several times the jury still cannot agree, the judge must make a decision in his or her own discretion, as to whether the jury is hopelessly deadlocked and will never be able to agree on a decision.
If the judge finds that the jury cannot agree this is sometimes referred to as a "hung" jury. In that case, the judge will declare a mistrial. Thereafter, the case will have to be re tried by the parties. So in that case, they start from Day 1 picking a jury in another case. Of course, the parties will have different jurors.
If a practical matter, many times after the judge declares a mistrial because of a "hung" jury the parties reach a settlement.
If you have any questions about how a jury trial works or any other questions about your case give us a call at 910-888-8888. We answer questions like this every day.
Can Lawyers Loan Money to Clients?
Individuals who have been involved in a car collision are sometimes placed in a financial bind because of the injuries caused by the crash.
If this occurs, the victims of motor vehicle collisions turn to family and friends for financial help.
Occasionally, these people ask their attorneys for a loan pending the outcome of their case. These injury victims see that there will likely be a time when they will have a pool of money from which to repay loans.
In North Carolina, lawyers are especially forbidden to loan money to clients. Occasionally we will get requests from clients to loan them money. Unfortunately, we are unable to accommodate these requests because the law prevents lawyers from loaning money to clients.
In time has passed, there were individuals and small companies who would be willing to loan money to clients based upon a potential recovery in their personal injury suits. However, several years ago the North Carolina Supreme Court enacted a rule that there were strict limits on such loans and that usury law would apply to prevent high-interest rates on those loans. As a result, the sources for such loans dried up in North Carolina. We are currently not aware of any companies which are willing to make loans to clients based upon a loan secured by potential personal injury settlements.
However, this does not stop family members or friends from making loans to victims of motor vehicle collisions. However, people who make such loans should understand the strict usury law applies and that the interest charged may not be greater than 8 percent per annum.
Why Does My Credit Score Matter?
One day--if not already--you will need a loan. Your credit score is used to determine whether or not you are capable of making your loan payments. Your credit score shows how reliable you are to creditors.
Credit Scores are Based on These Factors
- Your payment history
- The amount of debt you have
- How long your credit accounts have been in use
- The credit you have
- How often you use credit
The better your credit score, the more likely you are to receive a loan.
If you have a question about your credit score or bankruptcy contact the office of Brent Adams and Associates in North Carolina.
Can I Draw Workers' Comp and SSD at the Same Time?
Yes, you can collect workers' comp and SSD at the same time However, the Social Security Administration may alter your monthly payment of SSD while you receive workers' compensation. Your workers' comp earnings, plus your SSD benefits, cannot total more than 80% of your earnings before you became disabled. If your earnings exceed this amount, the Social Security Administration will alter your alloted monthly payment.
Your Social Security benefits will return to their previous amount once you stop receiving workers' compensation. This does not apply to privately funded insurance plans; they will not alter your monthly Social Security Disability benefits. Veterans' benefits, state/local government benefits, and Supplemental Security Income will also not affect monthly SSD payments.
Why are Nursing Home Residents Abused?
Several nursing homes are understaffed. As well as being understaffed, some nursing home employees do not have proper training. Having an understaffed and underqualified employees would cause any business to experience several problems. However, when it comes to nursing homes, the problems caused by an understaffed and underqualified staff can be deadly. Residents are likely to receive improper treatment and neglect when this is the face, causing injuries, illnesses, or death. Some residents do not have family visit regularaly. If this is the case, detecting abuse may be more challenging.
However, this is not a problem at every nursing home. But if you see the signs, contact an attorney. Brent Adams has been practicing law for over forty years, and he and his team of lawyers are prepared to help you. Click here to schedule a free consultation or
How is mediation different from arbitration?
Sometimes injured parties try to avoid a jury trial and instead rely on out-of-court negotiations and settlement options. If direct negotiation with the negligent party (or parties) fails to reach an adequate settlement for the victim, the victim could opt for mediation or arbitration. Our North Carolina injury lawyers frequently participate with both of these options and help prepare clients for each. To understand the differences between these out-of-court options, first understand how each work:
Mediations are informal gatherings between the opposing parties and are overseen by a mediator. The mediator is an objective neutral party who helps both sides move forward toward a mutually agreeable settlement figure. The accident is discussed in detail. The victim and their counsel provide medical bills, estimates of lost wages, and accident evidence to accurately quantify their losses. The mediator moves back-and-forth between both sides delivering settlement offers until both parties agree on terms.
Arbitrations involve a small arbitration panel that acts similar to a jury. The victim and the defense each choose a member for the panel, and a third objective panel member is also included. All case materials are presented to the abritration panel, and the panel determines the settlement.
Out-of-court settlements are usually attractive because they:
- Reach a settlement faster than court proceedings in most cases.
- Require less expenses. Court costs are avoided.
However, there are downsides to settling outside of court:
- Settlements could be smaller. The American Healthcare Association studied awards and found that arbitration settlements were approximately 35% lower on average than similar cases that followed a jury trial.
- Decisions are often binding. Mediation and arbitration decisions are generally final. Appeals for arbitrations are rare. Without a jury trial in a court, the victim has no means of appealing the case and having the case heard by a new jury and judge.
The length of a jury trial is not easy to predict. Sometimes accident victims simply want to move on with their lives and avoid a lengthy trial. Our attorneys can help advise what would be in the victim's best interests depending on the circumstances of their case.
If you would like to hear more about these out-of-court options, are attorneys discuss them during a legal podcast here. We also provide free case evaluations.
Note: As of this writing, a pending federal proposal could change how credit card companies include arbitration-only clauses in their contracts. Pending federal legislation changes would also affect nursing homes that use binding arbitration agreements. Learn more at the previous link.
My NC disability claim was denied in the 1980s, is it considered a 'Hyatt Case?'
More than 75,000 individuals are eligible for reconsideration of their disability claims after a landmark case Hyatt v. Shalala. Since the Hyatt ruling, individuals who qualify for reconsideration are often referred to as 'Hyatt Cases.' Individuals who believe they are eligible for the protections afforded by the court ruling should consider a few points:
- Time the disability was claimed. The court orders apply to Social Security Disability cases that occurred in the 1980s and 1990s.
- Denial. The case law applies to individuals whose disability claims were denied in the 1980s and 1990s.
- Reason for disability denial. The lawsuit pertained to certain types of claims with little to no substantial evidence of medical improvement and were being denied by officials who arbitrarily decided the claimant's disability had improved. Many of the lawsuit cases referenced pain. Other conditions such as hypertension or diabetes were also cited.
Hyatt Cases are generally one of the most difficult types of disability cases to win. Claimants must meet all the criteria and documents should be gathered and prepared properly. Fortunately, our firm has an attorney who is a Board Certified Social Security Disability Benefits Specialist and who has successfully won a Hyatt Case. Contact our office for a free case evaluation.
How can I prove another driver was texting and driving?
Accident evidence varies case-by-case for vehicle crashes in North Carolina. Glare, obstructions and debris, speeding - these factors can be supported by weather reports, photos of the accident scene, and crash analysis by engineers. What about a driver who was texting and driving? How can an injured accident victim prove another driver was too busy checking email or texting a friend than focusing on the road?
Although these are only a few suggestions that should not replace a consultation with one of our Raleigh, Dunn or Fayetteville car accident lawyers, we want to help accident survivors start understanding the injury claim process in North Carolina--and evidence collection is just one part of it. If you are concerned about the challenge of proving another driver's negligent use of a cell phone while operating a vehicle, here are a few possible ways to help establish proof:
Police report. The negligent driver may have admitted their faulty cell phone use to the responding police officer, and that officer should have noted this in their police report.
Witnesses. Whether there were passengers in your vehicle, the at-fault driver's vehicle, or individuals nearby who were not directly involved with the accident--a collection of eyewitness accounts affirming that the other driver was texting and driving can help when negotiating your claim.
Cell phone records. Several laws govern the accessiblity and privacy of cell phone statements, however, in most cases it is possible to acquire drivers' cell phone statements. These statements provide clear evidence of the time calls and texts were made.
Sadly, the majority of drivers text and drive even though it is against the law. A recent study reported by Business Insider shows that 4 out of 5 college students text and drive. Statistically, we all face a great risk of being involved in an accident caused by a driver who was texting behind the wheel. Encourage your friends and family to avoid using their cell phones while driving. Even voice-to-text services have been proven to increase accident rates.
Safest Seat in the Car for a Child?
North Carolina, like all other states, has child seat safety laws that govern where children are legally permitted to ride as a passenger. These regulations are determined based on children's size or age.
Where is the safest place for a child to sit?
The Centers for Disease Control (CDC) has created specific guidelines for children aged 12 and under, or who under 57 inches tall. Their guidelines consistently encourage parents and guardians to use:
Front seats are dangerous for young children as they can be severely injured or killed from air bag injuries in the event of a collision. Air bag injuries can cause facial disfiguration, loss of vision, and extensive surgeries with long recovery times.
Parents should follow the specific car seat guidelines for proper fit, as well as follow state requirements for children's seat belt use. Infants and toddlers under the age of 2 should remain in rear-facing child safety seats until their size permits them to move into a forward-facing child safety seat.
For parents or guardians who have three seats in the second row, or maybe even a third or fourth row of seating in a large vehicle, where is the safest place for a child to sit? According to the CDC:
"Place children in the middle of the back seat when possible, because it is the safest spot in the vehicle."
Learn about preventing rear-seat passenger injuries.
Wonder if you are liable for your injuries if you neglect to wear a seatbelt? Our Raleigh injury lawyers review a special statute that addresses a seat belt law loophole.
How do I get my medical bills paid after I've been in a wreck?
After a Raleigh car accident, there are several sources which may be available to you from which you can get your medical bills paid. You should use all of these sources in every case. There's never a reason not to make a claim against all available insurance policies.
One source of payment is your own health and hospital insurance policy. You should always make a claim against this insurance even though other sources of collection may be available to you.
Another common resource you may be able to use to pay your medical expenses is the medical payment provision of the liability insurance policy which insures the car in which you are riding at the time of the collision. If the vehicle you're in has medical payment coverage, you're entitled to recover all of your medical bills arising out of the wreck up to the limit of the policy. Most policies provide $1,000 to $5,000 of medical payment benefits. You can claim these medical payment benefits, commonly referred to as "med pay" regardless of whether you own the car. Also, if the car in which you are injured does not have a medical payment provision, but you have a car that does have such a provision, you can collect from that insurance policy on your car even though you are not in the car at the time you were injured.
If the collision was caused by the negligence of another person, you can collect all of your medical expenses from the liability insurance policy which insures that individual. Of course, the negligent party is personally liable for the damage caused to you in the collision as a result of their negligence. However, we usually think in terms of collecting from their insurance company. If for some reason the negligent party does not have liability insurance you could get a judgment against the negligent driver, although in many cases, that judgment would not be collectible.
If you are injured by an uninsured driver, you could collect from your own liability insurance policy if that policy includes an uninsured motorist provision. Under such a provision you collect from your own insurance company for damage caused by an uninsured driver.
You should collect from all of these sources even though there may be double recoveries. This is only fair since you paid for most of the insurance available. The negligent party should not get the benefit of insurance which you paid for. Therefore, the negligent party does not get any credit or set off from cause of the fact that you may have collected your medical bills from other sources.
Do I have to pay income tax on what I recover from my personal injury claim?
Generally, workers' compensation and recoveries against an asbestos manufacturer are not subject to income tax.
Social Security benefits are partially taxable, depending on your income for the year you receive them. Union pension benefits are taxable if you didn't pay the insurance premiums that bought them; they are tax-free if you did.
If you lose Social Security benefits because you also got workers' compensation, the amount of those workers' compensation benefits is taxable as Social Security even though workers' compensation is not taxable.
Understand that tax laws change over time and you should consult an attorney or a tax professional to verify your tax requirements.