Attorney and Lawyer FAQ

Accident and Injuries

How are wrongful death damages determined?

Under the North Carolina Wrongful Death Statute, damages that may be recovered for death by wrongful act include expenses for care, treatment and hospitalization incident to the injury resulting in the death, pain and suffering, reasonable funeral expense and the present monetary value of the deceased to the next-of-kin.

Georgia’s wrongful death statute provides for two categories of wrongful death damages.  The claim brought by the surviving family members is for the “full value of the life of the deceased.”  Unlike the North Carolina statute, Georgia’s wrongful death statute views the full value of the decedent’s life from the perspective of the decedent.  That is, the value of the life is essentially what the decedent lost as a result of the premature death.  This includes such particular items as lost wages and benefits together with the loss of companionship and other intangible benefits.

The second type of wrongful death damages in Georgia is the claim brought by the personal representative of the decedent’s estate.  This claim includes funeral and burial expenses, any pain and suffering consciously suffered by the decedent prior to death and medical expenses related to the decedent’s last illness or injury.

There is no rule or precise formula for measuring the value of a wrongful death claim.  The law governing the types of damages that may be awarded in a wrongful death case and the evidence used to prove those damages is complicated.  Settling a wrongful death before our Accident and Injury Attorneys have an opportunity to carefully determine what damages may be available to you and prepare the most convincing evidence of those damages is not recommended.

How can I pay a lawyer to represent me in an accident or injury case?

The Accident and Injury Lawyers at Cannon Law, P.C. will give you the option of choosing an hourly fee arrangement, a flat fee for services or a contingency fee. With an hourly fee you pay a set amount for the time spent working on your case by our lawyer and staff. A flat fee is a onetime charge for handling your case and may be appropriate in cases that are not complicated. A contingency fee may be appropriate when you cannot afford to pay an hourly fee or flat fee.

When you agree to a contingency fee, you are agreeing to pay us a portion of whatever amount of money the lawyer recovers on your behalf. All contingency fee agreements must be in writing, signed by the client and state the method by which the fee is to be determined, including the percentage that will be paid to the lawyer in the event of settlement, trial or appeal. In addition, all contingency fee agreements will include an explanation of how court costs and other expenses will be deducted from any recovery.  If any money is recovered, you will receive a written accounting at the conclusion of the case stating the outcome of the case and showing the amount you receive along with an explanation for all other expenses and fees deducted from your recovery.

How long will it take to settle my case or go to trial?

It is impossible to predict a precise time line for cases. However, most cases in North Carolina and Georgia trial courts generally appear for the first time on a jury calendar eight to twelve months after the answer is filed by the defendant. If the court where your case is filed is very busy, it may take longer for your case to appear on the calendar.

Once the case appears on the calendar it can be several terms of court before your case advances to the top of the calendar so that it can be reached for trial. However, you will need to clear your calendar and be available for any week that your case is on the trial calendar.Trial scheduling is largely controlled by the Court and can depend upon a number of factors out of your lawyer’s control.Some factors that may influence how quickly your case gets to trial are the amount of depositions and difficulty in scheduling depositions, new information that arises during discovery, and conflicts with cases scheduled for trial in other courts. Our firm will do our best to let you know as early as possible when anticipated schedules may be changed.

In addition to attorney fees, what other costs may be incurred in pursuing my accident or injury claim?

Costs in many cases may include, the court filing fee, court reporter fees for depositions and trial transcripts, expert witness fees, trial exhibit preparation, mediation fees, postage, telephone and medical record copying costs. If your deposition is taken your lawyer will typically order a copy of the deposition to have a record of what you said under oath. In addition, your lawyer may take the deposition of the other party, along with witnesses and the doctors that treated you for your injury. In some cases, expert witnesses are needed to project future medical costs, perform engineering calculations related to how your injury occurred or prepare precise drawings related to your case that can be used in depositions and trials. Our firm will not hire experts nor take depositions until we have explained to you why we think these are needed and obtain your approval.

What damages are available if I am injured?

Damages are money compensation awarded to a person who has any past, present or future injury caused by another person.  These damages typically can include medical expenses, loss of earnings, pain and suffering, scars or disfigurement, loss of use of a part of the body and permanent injury.  In some situations punitive damages and damages for loss of consortium may also be awarded.

No personal injury case is like another and the amount of the types of damages that may be available and the amount of damages that may be awarded are heavily dependent upon the facts of your particular case and applicable law.  In addition, it is not uncommon for a jury to reach a compromise verdict on damages when there is a dispute over the cause of your injury.

Laws governing the types of damages that may be awarded in a personal injury case and the rules of evidence used to prove those damages are complex.  Settling a personal injury claim before an attorney has an opportunity to carefully determine what damages may be available is not recommended.

Who can bring a wrongful death claim?

When the death of a person is caused by another person under circumstances that would have allowed an action for personal injury, North Carolina and Georgia permit a claim for wrongful death.  In North Carolina, an action for wrongful death must be brought by the Executor, Administrator or Collector of the deceased person’s estate.  However, even though the claim must be brought by the Personal Representative or Collector, the persons that will actually receive the damages are those persons who would inherit from the deceased person in the absence of a will.

In Georgia, a claim for wrongful death must be brought by the surviving spouse or, if there is no surviving spouse, by a child over the age of 18.  When there is no spouse or surviving child entitled to bring an action for wrongful death, the Administrator or Executor of the decedent’s estate may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. If the decedent is a child and leaves no spouse or children entitled to bring a wrongful death action, the parent or parents of the deceased child may bring the suit.

 

Condemnation Lawyer Questions

Can I recover my attorneys’ fees?

Attorneys’ fees cannot be recovered in most condemnation actions but are allowed in a few specified circumstances.  However, attorneys’ fees can be recovered in an inverse condemnation case where property is taken before proper legal proceedings are filed.

How much will a lawyer charge for representing me in a condemnation case?

Condemnation cases are most commonly handled on a contingency fee basis.  That is, the lawyer will receive a portion of the amount that is recovered from the condemning agency as a fee.  An hourly fee is also available in most condemnation cases.

How will I know if my property is being taken?

In most cases you will receive written notice that condemnation proceedings are being considered even before the actual condemnation proceedings begin.  You may even be extended an offer of compensation prior to the filing of the condemnation proceedings.  When the condemnation proceeding is filed in court, you will most likely be served by mail or by a deputy sheriff with a copy of the proceedings and with a summons requiring you to file an answer within a certain period of time if you wish to contest the condemnation.

In some instances a condemning agency takes property before filing proper legal proceedings.  In that situation, the landowner can usually file a action for inverse condemnation seeking damages for the property taken.  There are statutes of limitation that apply and when you learn that your property has been taken you should consult a lawyer immediately to avoid the running of the statute of limitations and your claim for compensation being barred.

In addition to the lawyer’s fee, what other costs may be incurred?

Costs in most condemnation cases include one or more real estate value experts (appraisers and other persons with specialized knowledge of the value of your property).  Sometimes other expenses for depositions may include deposition costs, preparation of exhibits for trial and other similar expenses.  Some of these costs may be recoverable from the condemning agency if you recover at trial more than the agency offered.  Our firm will not hire experts nor take depositions until we have explained to you why we think these are needed and obtain your approval.

Should I hire a condemnation lawyer before talking with the D.O.T.?

DO NOT SIGN ANY DOCUMENTS OFFERED BY THE CONDEMNING AGENCY UNTIL YOU HAVE TALKED TO A LAWYER. By the time that the Department of Transportation or some other condemning agency has notified you of its intention to take your property that agency has already designed the project for which your property is being taken, obtained an appraisal of your property and determined what they will offer you for your property. In order to properly evaluate any offer you need to know what damages are available to you as a result of the taking of your property and how a jury might value what damages you have suffered. In addition, photographs and surveys may need to be taken for use during settlement negotiations or trial. However, you should not rush into the decision. Make sure that the lawyer you hire has experience and is qualified to handle your case. Most importantly, be sure that you are comfortable with the lawyer

What compensation can I recover?

The legal issues involved in the evidence used in condemnation cases for proving damages can be very complex and are dependent on the facts of each particular case.  In general, where a portion of property is taken for highway purposes, the basic compensation for land taken by condemnation is the difference in fair market value of the entire tract of land just before the taking and the value immediately after the taking with consideration given to any benefits resulting to the remaining portion from utilization of the part taken for highway purposes.  For example, if a person owns a 10 acre tract of land worth $100,000 and the condemnation takes 1 acre and the remaining 9 acres are worth $75,000, the compensation for the taking would be $25,000.  Where the entire tract of land is taken, the compensation is the fair market value of the land at the time of the taking.

There are a number of elements that influence the ultimate amount that is recovered for property taken in a condemnation action.

  • The fair market value of the land is determined as of the “date of taking.”  The date of the filing of the petition or complaint is the “date of taking.”  Even if the trial is some time after the date of taking, the compensation is still computed as of the date of taking.
  • The amount of any compensation awarded will be reduced by any amount paid in advance by the condemning authority with the filing of the petition.
  • You can recover interest on the amount of compensation awarded that exceeds the amount paid in advance by the condemning authority.
  • In North Carolina, compensation cannot be awarded for loss of a business maintained on the land taken.  However, where the taking results in a business loss that renders the land less valuable, the landowner can recover for the reduction in value of the land itself.
  • In determining the fair market value of land, the “highest and best” use of the land should be considered, not just the use to which the land is being applied at the time of condemnation.
  • Where a building is located on the land condemned, the value of the building is considered in computing the value of the land taken and the compensation awarded.
  • Loss of access to a public highway can constitute a taking of property.
What should I ask a lawyer about my condemnation case?

You may want to prepare a list of questions to bring with you. Many of the questions on this page may be included. Some general questions that you may wish to ask are:

  • Can you tell me about your experience in condemnation cases?
  • How will you be paid?
  • What does your fee cover in a condemnation case? Are there other costs that may be associated with a condemnation case?
  • How long does a condemnation case take to complete?
Who can take my property?

Many governmental agencies (the United States, the state, counties and cities and many agencies of those governments) and some private companies, such as railroads, power companies and pipeline companies, may take your property as long as they pay you just compensation.  There are limitations on the purpose for which your property can be taken.  Generally speaking, the taking must be for a public purpose.

 

Personal Injury Lawyer Questions

How are Wrongful Death damages determined?

When the death of a person is caused by another person under circumstances that would have allowed an action for personal injury, North Carolina permits a claim for wrongful death.  An action for wrongful death must be brought by the Executor, Administrator or Collector of the deceased person’s estate.  However, even though the claim must be brought by the Personal Representative or Collector, the persons that will actually receive the damages are those persons who would inherit from the deceased person in the absence of a will.
Under the North Caroli

a Wrongful Death Statute, damages that may be recovered for death by wrongful act include expenses for care, treatment and hospitalization incident to the injury resulting in death; compensation for pain and suffering of the decedent; the reasonable funeral expenses of the decedent; the present monetary value of the decedent to receive the damages recovered, including the loss of net income of the decedent, the loss of services, protection, care and assistance of the decedent, the loss of the society, companionship, comfort, guidance and advice of the decedent; and punitive damages, if permitted by law.  The expenses for care, treatment and hospitalization, compensation for pain and suffering of the decedent and punitive damages are similar to those that could be recovered in an action for personal injury.  For additional information on these items of damages please click here.

There is no rule or precise formula for measuring the present monetary value of the decedent.  Damages awarded will vary according to the age of the deceased person, the ages of the beneficiaries and the relationship between the beneficiaries and the deceased.  The law governing the types of damages that may be awarded in a wrongful death case and the evidence used to prove those damages is complex.  Settling a personal injury claim until your attorney has an opportunity to carefully determine what damages may be available to you and prepare the most convincing evidence of those damages is not recommended.

What kind of damages are available if I am injured?

Damages are money compensation awarded to a person who has any past, present or future injury caused by another person.  In North Carolina, these damages typically can include medical expenses, loss of earnings, pain and suffering, scars or disfigurement, loss of use of a part of the body and permanent injury.  In some situations punitive damages and damages for loss of consortium may also be awarded.  No personal injury case is like another and the amount of the types of damages that may be available and the amount of damages that may be awarded are heavily dependent upon the facts of your particular case and applicable law.  In addition, it is not uncommon for a jury to reach a compromise verdict on damages when there is a dispute over the cause of your injury.

Laws governing the types of damages that may be awarded in a personal injury case and the rules of evidence used to prove those damages are complex.  Settling a personal injury claim before an attorney has an opportunity to carefully determine what damages may be available is not recommended.

A claim for damages due to personal injury may include many of the following types of damages:

  • Pain and Suffering – Damages for pain and suffering are intended to compensate an injured party for the physical pain resulting from the injuries as well as the mental distress accompanying the physical injuries.  There is no formula for determining these damages and, in North Carolina, the jury is instructed to apply their logic and common sense to the evidence to arrive at fair compensation for pain and suffering.  In some unusual factual situations, a Defendant’s conduct can be so outrageous that damages may be awarded solely for emotional distress when there is no actual physical injury.
  • Medical Expenses – Expenses incurred in the care, treatment and hospitalization of an injured person can be compensated by damages in a personal injury claim.  These expenses include hospital charges, doctor bills, drug bills, physical therapy and medical supplies.
  • Loss of Earnings – If a person is working at the time of injury, and loses time from work as a result of the injury, damages may include compensation for past, present and future lost earnings.  Even if the injured person were not working at the time of injury, that person may be able to recover damages for loss of the ability to earn money in the future as a result of the injury.  In some personal injury cases, evidence of business losses may be admissible to determine lost earnings or damage to the ability to earn money.
  • Scars or Disfigurement – Some injuries leave a permanent scar or disfigurement and compensation for that permanent injury may be included as damages in a personal injury claim.
  • Loss of Use of Part of the Body – In some cases, a person may lose a part of the body, such as an arm or leg, or lose the use of a part of their body, either temporarily or permanently.  These damages may be included by a jury in its award of damages.
  • Permanent Injury – Some of the effects of an injury may continue throughout an injured person’s life and a jury may award damages for the injury over the Plaintiff’s life expectancy.
  • Loss of Consortium – Often times a serious personal injury can have an effect on the social and physical relationship between the injured party and their spouse.  This disruption of the marital relationship is called a “loss of consortium.”  Damages for loss of consortium are intended to compensate either the spouse or the injured party for the impact of the injury on their sexual relations, companionship and affection.
  • Punitive Damages – Punitive damages may be awarded where the conduct that caused the injury was outrageous or aggravated.  North Carolina law only permits punitive damages to be awarded for cases in which fraud, malice or willful or wanton conduct are present and punitive damages cannot exceed three times the amount of compensatory damages or $250,000, whichever is greater.  The $250,000 limit does not apply to a claim for punitive damages arising from a defendant operating a motor vehicle while impaired.

 

Construction Law Questions

Can I recover attorney’s fees if I am successful in defending a lien?

North Carolina law allows the presiding judge in any suit regarding construction liens to award a reasonable attorney’s fee to the Plaintiff who obtains a judgment of at least 50% of the monetary amount sought or a Defendant or Third Party Defendant against whom a judgment is rendered for less than 50% of the amount claimed. The 50% threshold can be altered by an offer of judgment made under Rule 68 of the North Carolina Rules of Civil Procedure. The judge is not required to award attorney’s fees and there must be a finding that there was an unreasonable refusal by the losing party to fully resolve the matter which constituted the basis of the suit or the basis of the defense.

Can I rely upon my lender’s inspection in making payments?

No. Any inspections by the lender are for the purpose of determining if there is adequate progress on the construction project and adequate security for advances made under the construction loan. You should regularly inspect the work done by your contractor to insure that it is in compliance with the construction contract and any draw schedules contained in the contract.

Can I terminate my construction contract if I am unhappy with my contractor?

In order to terminate a contract with a contractor the contractor must have committed a material breach of the contract, and the property owner must not be in breach of the contract at that time. A property owner is advised to give notice of the breach and provide for a time to cure the breach before declaring that the contract is terminated. Of course, the contract between the property owner and the contractor may provide explicit conditions for when the contract may be terminated as well as the procedure for termination. Before terminating a contract it is strongly recommended that a property owner seek legal advice as contract termination can have serious legal consequences.

Does a construction contract have to be in writing?

No, an enforceable contract for a construction project can be oral provided that all of the legal requirements of a contract (identification of parties, consideration, description of work to be done, price to be paid, etc.) can be proven. However, reliance upon an oral agreement is not advised.  A written contract substantially reduces the chances of a dispute between the parties and can also provide for the manner in which any disputes are resolved.

Does a standard form contract adequately protect me?

Not necessarily, the American Institute of Architects and other organizations have prepared standard contracts that are commonly used in the construction industry. Often these contracts contain references to other documents that may not be provided to you at the time you enter into the contract. Contractors and property owners are strongly advised to consult with an attorney before entering into any construction contract.

How do I protect myself from against liens?

Always obtain a lien affidavit/waiver from your contractor at the time of any payment stating that all subcontractors (including suppliers of material used to improve the property) have been paid in full and that the contractor waives all lien rights for work done up to that point in time. If you receive a notice from a subcontractor of a claim of lien, do not pay any funds to the contractor until you have met with an attorney to determine your rights.

Is a North Carolina General Contractor required to be licensed?

Under North Carolina law, any person or firm or corporation who for a fixed price, commission, fee or wage undertakes to bid upon or to construct or who undertakes to superintend or manage, on his own behalf or for any person, firm or corporation that is not licensed as a general contractor, the construction of any building, highway, public utilities, grading or any improvement or structure where the cost of the undertaking is $30,000 or more, or undertakes to erect a North Carolina labeled manufactured modular building meeting the North Carolina state building code must be licensed by the North Carolina Licensing Board for General Contractors. It is important to note that a partnership, corporation or LLC must be separately licensed from the individual person serving as the qualifier for such business. A contractor’s failure to comply with North Carolina licensing requirements will prevent the contractor from enforcing the provisions of the contract or collecting fees due.

What costs are included in a cost plus contract?

The costs to be included in a cost plus contract are a matter for agreement between the parties. A cost plus contract should be in writing and specify precisely the costs included.

What is a punch list?

A punch list is a term commonly used in the construction industry to refer to a list of minor work remaining to be done on the contract after the project is substantially completed. Punch list items do not normally refer to items that affect the structural integrity of the project nor do punch list items typically include any items that would prevent the owner from receiving a certificate of occupancy.

When must construction liens be filed?

In North Carolina, a contractor’s lien on the owner’s property must be filed within 120 days after the last furnishing of labor or materials at the site of the improvement. In order to perfect the contractor’s claim of lien on real property a suit must be filed within 180 days after the last furnishing of labor or materials at the site of the improvement in order to enforce the lien. A subcontractor may establish a lien on funds by serving the property owner a document known as a Notice of Claim of Lien Upon Funds. Other than the applicable statute of limitations for breach of contract, there are no deadlines for filing the Notice of Claim of Lien Upon Funds. A subcontractor may also file a subrogation lien on real property if the property owner pays funds to the contractor and failed to withhold funds for the subcontractor after receiving a notice of a claim of lien upon funds. This lien must be filed within 120 days after the contractor last furnished labor or materials to the site and a lawsuit to enforce this lien must be filed within 180 days after the contractor last furnished labor or materials to the site. A subcontractor may also file a subrogation lien against the owner’s property. This lien must be filed within 120 days after the contractor last furnished labor or materials to the site and the suit to enforce it must be filed within 180 days after the contractor last furnished labor or materials to the site.