Wrongful Death Lawyers: Why You Need A Professional Wrongful Death Attorney

When your family member is killed due to negligence of another person or company, are entitled to file a wrongful death and survival action the responsible persons. Unfortunately, many important decisions about your case need to be made as soon as possible even while you and your family are in the midst of making funeral arrangements, while grieving, and while you are most confused and unconcerned about protecting your rights as well as the rights of your family.

However, you can be sure that while you are busy burying your loved one, the defendant and/or its insurance company will be hiring, private investigators, wrongful death lawyers and insurance adjusters to build a case to try to minimize or eliminate their liability.

Unfortunately, many grieving spouses and family members “go to battle” without a professional wrongful death attorney of their own.

While a wrongful death action can arise from a variety of causes, the most common causes of a wrongful death include:

Motor Vehicle Accidents.  Motorists have an obligation to exercise caution while operating motor vehicles and drive safely according to the conditions while being mindful of other motorist, adverse weather conditions and pedestrians. 

Medical Malpractice.  If a medical practitioner fails to perform his or her duties to the accepted standard of care, thereby causing death to a patient; then, the doctor or medical practitioner can be held accountable.

Defective Products Or Drugs (“Product Liability”).  Manufacturers, distributors, and designers must ensure that their products are safe for the public. If a product is defective in terms of its design, manufacturing, or customers are not warned of a potentially harmful risk, then all of the distributors can be held liable, even if all of the parties were not negligent.

Construction Or Workplace Accidents.  Employers have a legal obligation to meet OSHA standards, as well as additional safety standards under state law and generally provide a safe work environment for their employees.  If an employee is killed on a work site as a result of an employer or contractor’s  negligent actions or disregard for employee safety, the surviving spouse and/or family members can bring a wrongful death lawsuit against the responsible parties.

Maritime And Longshore/Harborworker Accidents.  Persons employed as sailors aboard ships, as well as those who load and unload cargo carried on ships, have enjoyed special protection under two federal laws:  The Jones Act (sailors and seamen) and the Longshore and Harborworkers Act.  Where seamen or stevedores are killed while on the job, the family has the ability to bring a wrongful death action under these statutes.

In a wrongful death action, that friendly insurance adjuster or lawyer is not there to help you. He is working for the persons that are responsible for the death of your loved one. His sole responsibility is to make sure that the insurance company avoids or minimizes its liability and pays out as little as possible to you. Here are his three main objectives:

Locks In Your Statement Early. He locks in your statement early before additional damages have a chance to manifest themselves and you change your story later to reflect these new facts.

Settles Your Claim Before You Retain Legal Counsel. He settles your claim early and quickly while you are emotionally vulnerable and uncertain about your future; and, before you have a chance to retain wrongful death legal counsel.

If Unsuccessful, He Delays Settlement Until Statute Of Limitations Expires. If he cannot settle your claim early, then he will drag it out as long as he can in the hopes that you will miss the statute of limitations, waive some other important legal right or just get tired and take the offer.

In my opinion, families who choose not to hire a wrongful death attorney have virtually no chance of being treated fairly by the defendants and their insurance companies.

Let’s take a look at how a wrongful death law firm can assist you in preserving and maximizing your claim against those that are responsible for the death of your loved one.

Statutes of limitation vary from state to state.  But, generally the statute of limitation in a wrongful death and survival action runs two years from the date of death or the date of the injury or accident.  

Once an defense attorney or insurance adjuster determines that you are not going to settle the wrongful death claim quickly for pennies on the dollar, they shift their focus to delaying the “investigation” for as long as possible.  

Their goal is to (1) cause you to miss the statute of limitation, (2) waive important rights, (3) allow important evidence to be destroyed or lost; and, (2) ultimately wear you down so that you will take the meager settlement and walk away.

To the layperson, the surviving spouse and her children seem to be the logical persons to file the wrongful death cause of action. In fact, in most states this is not the case. In fact, potential plaintiffs range from step children, dependant adult children and non-children, employers (if not involved in the death), former spouses, adult siblings, parents of adult children, and, in some cases, grandparents as well. These actions are usually called “wrongful death and survival actions.”

Wrongful Death Actions. When accident attorneys speak of a wrongful death action, they are really talking about a combination of two distinct causes of action. In its strictest sense, wrongful death attorneys file both a wrongful death and survival actions. The names are a bit misleading in that a wrongful death action is designed to recover damages incurred by surviving spouses, children, dependents and family members.

Survival Actions. These actions are designed to recover damages, such as pain and suffering, incurred by the decedent. It is called a “survival action” because it “survives” even though the victim has died from his injuries. At common law, where a person was injured and later died, the cause of action for pain and suffering died as well. In most states in the United States, legislatures have passed “survival statutes” to repudiate the common law.

When you file a wrongful death action, you must prove certain elements, by a “preponderance of the evidence (usually), including: (1) that the responsible party had a duty to act in a certain way, (2) failed to act according to that duty, and in doing so, (3) caused the death of your loved one.

Preponderance of the Evidence.  Plaintiffs must prove that the defendants are responsible for the death of the victim by a “preponderance of the evidence.” This means that it is “more likely than not” that the defendants’ actions were responsible for the victim’s injuries. It has often been described as a 51% proof of liability standard.   It is a much lower burden than in a criminal case where the burden is “beyond a reasonable doubt.”

Evidence In A Wrongful Death Claim.  In most wrongful death cases, evidence comes from witnesses, documentary evidence (police reports, medical records, etc.) and expert testimony.  It also comes from other uncommon sources such as internal company documents, spreadsheets, pay stubs, invoices, emails, correspondence, memorandums and photographs.  Other times, important evidence has been located by interviewing neighbors, store owners, disgruntled former employees, whistleblowers.  Still other times, the accident or death is caught on surveillance cameras, camera phones or other videotape.   

Jury Verdicts.  Many wrongful death lawsuits are settled before trial.  But, a competent wrongful death attorney gathers evidence and prepares the case assuming he is going to have to go to trial.  In most states, a civil jury does not have to reach a unanimous verdict as is required in criminal trials.  The plaintiff need only convince 10 of 12 jurors (or 7 of 12 jurors in some states).

Here is an overview of the most common types of damages:

Compensatory Damages. These are intended to repay a victim’s family for the costs of medical care, funeral and burial and other expenses they had to incur as the direct result of the death. They are also intended to replace lost income that would have been earned if the victim had lived. Depending on the age of the victim and his level of income, this amount can be quite large. On the other hand, families have also been awarded damages for a mom’s housekeeping, child-care services and loss of companionship to the survivors.

Punitive Or “Exemplary” Damages. A victim’s family may recover punitive damages which are designed to “punish” the defendant if its acts/omissions were intentional, reckless or grossly negligent. These are awarded on top of compensatory damages. In some states, punitive damages are regulated or capped by state statute.

Limits on Damages. Even though juries can award whatever amount of punitive damages they feel are appropriate, judges can review and reduce the jury award through the legal process of “remittitur.” Some states and foreign governments place limits on the amount of money in compensatory or punitive damages a jury can award to a victim’s family in a wrongful death action. An experienced wrongful death attorney can minimize the chance of this happening to you or your family.

Purchase Structured Settlements.  Where you have survivors that are minor children, widows, incompetent persons, or have long term health care needs, the wrongful death attorney might advise you to purchase structured settlement payments instead of receiving the money in a lump sum.  This can protect the survivors from fraud, mismanagement or unscrupulous friends and relatives.

A lawyer who represents himself has a fool for a client. (unknown 1805).

Even lawyers know that they should find a lawyer to represent them in a case. If you have a wrongful death claim, you must speak to a qualified wrongful death attorney for a case review before the funeral. Once you have turned the case over to a competent attorney, they can move forward with gathering evidence and protecting your interests while you grieve, bury your loved one and try to move forward.

Between unscrupulous insurance adjuster tactics, loss or destruction of critical evidence and statute of limitations that vary by state, you simply cannot take a chance of mishandling a serious legal claim on this magnitude. Indeed, waiting too long to consult with a personal injury attorney (who specializes in wrongful death cases)can prevent you from ever getting into to court to fight for financial compensation for your family’s medical bills, pain and suffering, loss of companionship and other damages.