Nobody wants to be filing a wrongful death lawsuit. Dealing with legal matters at an already tough time is enough to potentially push you over the edge. The best antidote to this is to know what to expect and have an understanding of the timeline and the series of events that will occur.
The First Stage
Wrongful death has a statute of limitations, like other personal injury lawsuits. However, when the time starts varies by location. In some states, it starts at the death of the person. In others, it starts when the person bringing the suit discovered (or reasonably should have discovered) the cause of death.
Thus, the first stage is establishing that you might have a case. Because of the statute of limitations, you should contact a lawyer as soon as possible to work with you on this. In some cases, the grounds for a suit can be obvious (for example, somebody is hit by a bus and witnesses on the bus say the driver had fallen asleep). In others, it can be a lot more subtle. Medical malpractice can be a particularly tricky area.
Once you have established that negligence or recklessness occurred, then you should start the process of pursuing a claim right away.
Probate
One of the first things you will need to do is open a probate estate. As you are suing on behalf of a deceased person, there needs to be a legal entity involved. This is easier if the person left a will, which allows you to handle much of the paperwork before meeting with the probate attorney.
If there are beneficiaries who are minor children, the court will generally require a guardian be appointed to help look out for their best interests and manage any funds they received.
Establish What Damages You Are Seeking
There are several different kinds of damages you may be able to seek:
- Burial/cremation and final expenses costs.
- Medical bills.
- Compensation for lost wages, assuming the same job and normal life expectancy.
- Compensation for pain and suffering, of both survivors and, in some cases, of the deceased.
In some states, punitive damages may also be awarded. These are designed to act as a deterrent against similar behavior. Your lawyer will help you work out what kind of damages and how much to ask for. Bear in mind that this is generally a starting point for negotiations, and the initial amount is likely to be higher than what you might end up receiving. Another factor affecting the result is the assets of the person you are suing; there is little point trying to get money they can’t pay.
Discovery
Your lawyer will also work to gather as much evidence as they can to support your case. This evidence might include any of the following:
- Medical bills.
- Doctor’s reports, including the cause of death on the death certificate.
- Eyewitness reports of the accident.
- Records indicating that a product may be faulty. For example if somebody died because of a faulty product that was subsequently recalled, the recall notice might be used as evidence.
During this, your lawyer is trying to establish three things:
- The defendant had a duty of care to the deceased person. This might sound scary, but it simply means that they had a responsibility to break. In a road accident, the duty of care is following the law and driving carefully. A tour operator who takes people to do a potentially dangerous activity such as climbing or horseback riding obviously has a duty of care.
- The defendant breached said duty of care. This is a fancy way of saying that some kind of negligence did occur. Did they run a red light? Sell a product they knew was defective? Fail to provide proper safety gear?
- The breach of the duty of care directly caused the wrongful death. You can’t sue somebody if safety gear broke right after (or because) your loved one had a heart attack, for example. There has to be direct causation.
In a few cases, a suit might be brought against somebody who intentionally caused death. This might be to obtain damages or it might be a situation where a jury was unable to prove beyond a reasonable doubt, but the lower standard of preponderance of evidence used in civil trials makes the evidence sufficient. A few states have an even lower standard, which is more likely than not.
You also need to establish that you, the person seeking the suit, experienced suffering and financial costs. (This also goes for minor children you are representing).
Seeking a Settlement
A lot of wrongful death suits never go to court. Once your lawyer has gathered the evidence they need to support your case, they will seek to settle with the other party.
A reasonable settlement is a cheaper option than going to court, and your lawyer is likely to recommend you accept one. This, again, won’t be for the amount they started negotiations with, which they will set deliberately high.
Be very careful about signing any agreement with the defendant. Don’t accept a settlement against the advice of your lawyer, but hold out for something worthwhile.
Settlements are generally established by either mediation or arbitration. Arbitration is often sought by large companies, and they may claim that their terms of service or end user agreement requires you to agree to binding arbitration. A good lawyer will fight this. Mediation is generally a fairier method: A professional mediator will handle agreements between both parties and help determine a fair result. Arbitration involves a judge or authority figure making a ruling in favor of one side or the other. This is similar to a full court trial, but a lot cheaper. If the arbitration is non-bindng, you can then go to court if unhappy with the ruling.
Going to Trial
It’s not always possible to come to an agreement, and many cases do go to trial. Generally, a case goes to trial when the liability is less clear and it takes more effort to establish whether the defendant was, indeed, at fault.
The trial will take place in the county in which you filed the case, unless there are federal issues involved, in which case you might have to go to a federal court. Your lawyer may do a mock trial in which fake jurors are hired. Generally, for a civil case, there are six jurors, but the number might vary.
At the trial, the jury will determine whether a wrongful death occurred, and will calculate the damages with some advice from the judge. This means that trials are often emotional appeals to the jury, even though they are not supposed to be. The trial might last anywhere from an hour to several days. Juries are often more affected by injuries to a child and often award more damages for permanent injury than for death.
Because the final decision is made by an easily-swayed jury, it is often better to settle. If you do go to court, try to do your best to appeal to the jury’s best nature. Be nice and pleasant, dress well but not too well, and show yourself to be a decent person. In theory, the jury should decide based on the law and will be instructed to do so. But jurors are only human and lack the extensive training in impartiality received by judges and mediators.
Should You Appeal?
If the decision goes against you, your lawyer will discuss with you whether you consider it is worth appealing. In most cases, an appellate court will assume the jury made a good decision with the facts at hand, unless you can strongly demonstrate otherwise. Thus, it’s often only worth appealing if you have new information that has a bearing on the case.
For example, if it comes out after the initial trial that the defendant was lying to cover up a problem with their product, then an appeal is reasonable. Otherwise, it is likely to be a waste of your money and your lawyer’s time.
How Long Does it Take?
There is no easy answer to how long it will take for you to get compensation. It depends on how long the discovery process takes, whether you are able to settle out of court, and how busy the county courthouse is. Because of all of these factors it can take anything from a few months to several years to resolve a wrongful death lawsuit.
A lawyer can help you navigate this as quickly as possible, but the truth is it is going to take time and you are going to have to be patient. Your lawyer will do their best to resolve everything in your favor.
If you have experienced a loss caused by the negligence or recklessness of a third party, then you need a good lawyer to help you get through the process of filing a suit and getting the compensation you deserve. Shiner Law Group can help you establish whether you have a case and navigate the difficult process that follows, and with our experience with wrongful death suits, we will do so with the tact and sensitivity appropriate to this difficult time.
