Why You Need an Experienced Wrongful Death Attorney to Represent You in Your Wrongful Death Claim
By David Carnes, Staff Writer
A wrongful death lawsuit is a lawsuit against a party who caused someone’s death through negligence (carelessness) or an intentional act. A typical wrongful death lawsuit, for example, might involve a claim against a careless driver who caused a fatal traffic accident. Wrongful death claims may also center on medical malpractice, product liability or even murder (as alleged in the O.J. Simpson civil lawsuit). Each state has its own wrongful death statute, and it can be difficult or impossible to navigate this legal maze without the assistance of an experienced wrongful death attorney.
Problem No. 1: Who Can You Sue?
The identity of the defendant in a wrongful death lawsuit is not always obvious.
- If you sue a drunk driver, you are essentially suing his insurance company. If your claim exceeds his policy limits, he may be too poor to pay the rest of the judgment.
- If you try to sue a government (for failing to properly maintain the roadway, for example), the applicable sovereign immunity law may restrict your ability to file a lawsuit or obtain an adequate recovery.
- If you sue a commercial driver (such as a trucker) with limited financial resources, you may need to sue the company he works for as well. The company might defend itself by claiming that the driver was not an employee but an independent contractor (and therefore not the company’s responsibility).
Problem No. 2: Who Can File a Lawsuit?
State law differs on who can file a wrongful death lawsuit. Typical plaintiffs include:
- Immediate family members of the victim. All states allow spouses, children and parents to recover.
- Financial dependents of the deceased, even if not close family members. Only some states allow this.
- Parents of a deceased fetus. Only a few states allow this.
- The executor or representative if the victim’s estate. Some states allow the executor to represent the interests of close family members, etc. as well as the interests of the deceased victim (pain and suffering before death and other losses).
Problem No. 3: What Can You Recover For?
They type of damages you can recover for are in many cases quite different than the types of damages that the victim could have claimed had he survived with personal injuries. Depending on the state, a wrongful death plaintiff may be able to recover for:
- Burial and funeral expenses,
- Loss of companionship, counsel, love, consortium (sexual relations) and other intangible emotional benefits,
- Loss of financial support,
- Medical bills,
- Loss of inheritance.
Problem No. 4: How Do You Gather Admissible Evidence?
The burden of proof in a wrongful death lawsuit is different than in a criminal trial. Because of this, just because the defendant is acquitted in a criminal trial doesn’t mean he can’t be held liable in a civil trial on the same case facts. Nevertheless, gathering evidence that meets a civil court’s standards of admissibility is a challenging endeavor even for a lawyer. Moreover, fitting the various pieces of the puzzle to prove liability takes considerable experience, knowledge and dedication.
Most wrongful death lawsuits are settled out of court, even after a lawsuit is filed. Obtaining an adequate settlement when negotiating with a stingy defendant requires a firm grasp of both the underlying legal background and the shifting dynamics of bargaining power. Ultimately, the defendant will only be motivated to settle with you for an amount that is somewhere in the range of the amount he expects to lose in court if settlement negotiations break off. Proof is just as important in settlement negotiations as it is in court.
If your loved one has lost his or her life due to the misconduct of someone else, it is critical that you retain an experienced wrongful death attorney as early as possible in your case. The amount by which a skilled attorney can increase your recovery might end up amounting to several times more than the amount of your attorneys’ fees.