Legal Issues and Wrongful Death

Information for Dealing with Wrongful Death Matters

An untimely death can leave remaining family members in a difficult situation, emotionally, financially and legally. A wrongful death action is classified under the category of personal injury law.  Personal injury law has become increasingly complicated over the years in an effort to eliminate frivolous claims.  Several elements must be present in order to have a valid wrongful death claim under the law.

Legal Issues Surrounding a Valid Wrongful Death Claim

Generally speaking, a valid wrongful death claim includes both causation and liability on the part of the defendant.  However, the law provides for elements beyond causation and liability.  These elements set forth the requirements for pursuing a claim.

A valid wrongful death claim attempts to prove the following elements of liability:

  • Duty – Did the responsible party (the defendant) owe your loved one (the victim) a duty to protect him or her from harm?
  • Breach of Duty – Did the defendant act negligently or fail to act in the manner required or normally expected?
  • Causation – Can the plaintiff prove that the defendant’s Breach of Duty resulted in the injury or death of the victim?
  • Damages – Did the above result in significant physical or financial harm, or in this case, catastrophic injury or death?

(More detailed information on components of liability can be found here, but the advice of an attorney is strongly recommended to anyone considering bringing a wrongful death suit.)

Proving Your Wrongful Death Claim

In order to legally prove your claim, you, your attorney, and the experts your law firm may hire must establish each of the elements set forth above. The inability to establish one element with certainty may prevent your family from recovering anything, so it is important to that every element is carefully and adequately addressed.

Duty In order to establish the element of duty, it must be shown that the party who caused the wrongful death had a duty to act or a duty to refrain from acting in a way that could result in death.  This act or omission to act must be reasonably foreseeable, which means that at the time the party acted or failed to act it was reasonably predictable that death could result. There are several different levels of duty. These levels of duty are dependent upon the situation.

Breach of Duty Essentially, breach of duty is the failure to meet a standard of care.  Since there are so many different standards of care, it is necessary to examine facts more closely in order to determine which standard of care applies. For example, professionals such as doctors and lawyers are held to a higher standard of care towards their patients and clients. However, patrons passing one another in a parking lot are not held to such a high duty. 

In order to identify how the defendant breached his/her duty, fill in the blank in the following sentence: The defendant(s) committed a breached of duty when he/she/they _________________ (insert the act or failure to act here).

Causation This is usually the most difficult element to establish in a wrongful death claim. Basically, the defendant’s act or failure to act must be the cause of the wrongful death.  This may be difficult to establish if there are several acts that have contributed to the wrongful death. In order to prove this element it is necessary to determine what test(s) your state uses for determining whether causation exists.

Damages Damages tend to be economic in nature for a wrongful death claim.  Damages are calculated according to fixed formulas used by the courts.  Damages vary depending upon such aspects as the age, occupation, and financial contribution of the deceased.

The Legal Process

Pursuing a wrongful death action involves many steps. To better understand the legal procedure for pursuing a wrongful death claim, InjuryBoard has created an outline.

Investigation The investigation step can be timely.  This step includes meeting with witnesses, talking with experts, and researching the law.  Oftentimes it may be difficult to complete the investigation because witnesses are unavailable or experts are difficult to schedule.  In addition, it is necessary that you provide your attorney with all the documents that may be relevant to your claim.  If you are unsure whether to give your attorney a document or any type of information, it is best to provide them with it and let him or her make the decision as to its relevance.

Strategy With your attorney’s guidance you will determine a strategy for your claim.  Make certain that you are comfortable with the strategy that your attorney decides to pursue. Consider your specific situation and the facts surrounding it. Developing a strategy may not be possible until you and your attorney have collected all the information and spoken with every witness and expert.

Demand Package/Mediation/Lawsuit Before a judge and jury hear your case, it must first go through the demand and mediation procedure. Demand requires the attorney to take action against the party you are proceeding against, such as filing a demand letter or filing for relief.  In addition, mediation occurs before trial takes place.  Many cases meet an agreement and settle on the claim.  However, if you are unable to reach an agreement with the opposing party through demand or mediation, then your claim will go to trial. 

Resolution  If you reach an agreement with the opposing party during mediation then the settlement agreement will govern and detail the terms of your agreement.  However, if your case continues to trial, then your damages will be determined by a jury. 

It is important to note that resolution may come in a number of forms: settlement, judgment for the plaintiff at trial, or judgment for the defendant. Other forms of resolution may come in the form of apologies or steps taken to prevent such an accident, injury, or death in the future.

The amount of time that each step takes depends on a multitude of factors, including your attorney’s devotion to the claim, the complexity of the case, and the ability to procure necessary information.  While it may seem that your claim is proceeding slowly, it is typical for cases to move slowly in the area of personal injury. Do not let the amount of time deter you from pursuing your claim.

Choosing An Attorney to Represent You

Choosing an attorney is one of the most significant decisions you will make in pursing a wrongful death action.  Due to the importance of this decision, it is necessary to consider several factors.  In order to provide assistance, InjuryBoard has consulted with its own member-attorneys as to what makes an attorney “right” for your case. These factors will help to ensure that you choose the best attorney for your claim.

Time Limitations When searching for an attorney it is first necessary to consider the constraints that you are working within.  Do not choose the first attorney you meet or be talked into representation simply because you fear the statute of limitations, or S.O.L., will pass. Know your statute of limitation and think of it as a being a deadline for finding the best attorney to handle your action.

*Note that many attorneys experienced in wrongful death claims will not accept a client whose claim is very close to expiration due to the statute of limitations. Every attorney needs some time to review his client’s claim and through a thorough investigation, make a determination regarding the viability of, and strategy for, your individual claim. You must also remember that certain situations have a shorter statute of limitations within which you must file, and thus require more immediate action. Choosing an attorney experienced in wrongful death claims early in the process will alleviate some of these concerns.

Competence An attorney’s experience may be his or her most important attribute. Make sure you inquire as to the attorney’s experience in the particular area of wrongful death claims and whether he or she feels completely competent in handling your matter.  Furthermore, it is necessary to inquire into the complexity of the attorney’s experience because your situation may require more in-depth or area-specific experience. Lastly, it is critical that you inquire into the results that the attorney has achieved for clients in similar positions. Visit our InjuryBoard law firms directory to browse a list of InjuryBoard member law firms experienced in wrongful death claims.

Organization Wrongful death claims are complicated. In order to ensure that your claim is handled properly you must choose an attorney who is organized.  Organization includes the attorney’s workload and whether he or she will be able to devote the proper amount of time to your claim. Even after you choose an attorney you must keep a watchful eye to ensure that neither the office nor attorney are neglecting your claim in any manner.

Reputation An attorney’s reputation within the community may influence both you and other attorneys. For example, if an attorney is known to be aggressive and achieve high settlements in prior wrongful death actions, then other attorneys may feel as though they are at his or her mercy.  Furthermore, if the attorney maintains a poor reputation in the community then it is likely that he or she will not have the confidence to get the settlement you deserve and may be at the mercy of other attorneys.  An attorney’s reputation within the specific area of wrongful death claims should be considered, rather than his or her reputation outside the legal field.

Communication  It is crucial for you to feel comfortable with your attorney. If you are not comfortable with your attorney then it is difficult to communicate and work towards a common goal.  Make certain that the attorney you choose is someone whom you feel comfortable confiding in.  In order to provide proper representation an attorney must be able to gather the appropriate information and you must be willing to be as open as possible in providing that information. Equally important, the attorney must be able to communicate well with you.  Communication also includes answering questions to your satisfaction, returning your calls, and keeping you up to date on progress.

Find personal injury attorneys and law firms experienced in wrongful death claims here.

Read the next article: Wrongful Death while On The Road 



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