What is a Wrongful Death Lawsuit?
How to File a Wrongful Death Claim in California
A loved one’s death is a shocking experience. Even more shocking is learning that the death was caused by someone’s carelessness or deliberately wrongful act. As you grieve the loss of your loved one, you should also think about holding the person who killed them legally responsible. Although you can’t bring a criminal lawsuit, you can bring a civil lawsuit for wrongful death. If you win, then the person who killed your loved one will have to pay you money as compensation. Before bringing your wrongful death claim, you should check whether you can sue. You also should hire an attorney, who will make the process much easier for you.
Building Your Case
Identify if you can sue.California allows only certain people to file a wrongful death lawsuit. You should check to see if you can sue. The following people may sue:
- the surviving spouse of the deceased
- the domestic partner of the deceased
- any surviving child of the deceased
- if none of the above are living, then an action could be brought by someone who would be entitled to the deceased’s property under the rules of intestacy, such as the deceased’s parents or siblings
- if financially dependent on the deceased, then their putative spouse, children, step-children, and parents can sue
Obtain a police report.You might not know how your loved one died. If they died in an accident, then you should get a copy of the police report. This police report should contain the names of any witnesses to the incident.
Collect other information about what happened.Before filing your lawsuit, you should get a general sense of what happened. If your loved one died while having an operation, then you should try to talk to anyone who was in the operating room—doctors, nurses, anesthesiologists, etc. They might not talk to you. However, you should try to identify them by name.
- You can also request any records that relate to the incident. For example, ask for copies of medical records.
- If your loved one was injured in a workplace incident, then seek out copies of the employer’s incident report.
Gather medical bills.You can be reimbursed for any money spent treating the deceased person’s injury or illness. These include the following:
- medical bills
- hospital bills
- funeral and burial expenses
Find financial information about lost wages.You can also get compensated for income the deceased could have earned in the future had they lived.You will need to prove these lost wages with some degree of certainty. Pull together the following:
- tax returns
- W-2 forms or proof of self-employed income
Identify other compensation that is available.Depending on your circumstances, you might also get compensation for other losses you have suffered. For example, damages are available for the following:
- loss of love, society, and companionship
- loss of moral support
- loss of marital relations (if you are the spouse)
- loss of guidance or training (especially if you are a child or step-child)
- pain and suffering
- emotional distress (if you witnessed the death)
- any damage to property
Avoid delay.In California, you only get two years from the date your loved one died in order to file your wrongful death lawsuit. This is called the “statute of limitations,” and if you violate it then the judge can dismiss the case.
- Accordingly, you should reach out to an attorney as soon as possible.
Finding an Attorney
Get referrals to personal injury lawyers.You should probably hire a lawyer to bring the wrongful death lawsuit for you. These lawsuits are complicated, and you will benefit from a lawyer’s expertise. You can get a referral in the following ways:
- Ask friends, family, or coworkers if they have used a personal injury lawyer.
- Ask another lawyer. You might have used a lawyer to represent you in a criminal matter or to write a will. Call them up and ask them for a referral.
- Use a certified referral service. You can find them at the state bar’s website at www.calbar.org/lrs or by calling 866-442-2529 if in state. If you are outside the state, call 415-538-2250.
Schedule a consultation.You should schedule a consultation with three or four lawyers. You want to comparison shop, but you won’t have a lot of time to meet with more than four lawyers. Call up the lawyers and ask to schedule a 15-30 minute consultation. Also ask how much they charge for a consultation.
- If you are still feeling emotional, ask a friend or family member to attend the consultation with you. They can provide emotional support.
Ask questions at the consultation.You should arrive to your consultation prepared with questions. Write them out ahead of time. Although you will spend a good bit of the consultation explaining your situation, there should be time at the end for questions. Ask the following:
- How long has the lawyer been practicing law?
- How much experience does the lawyer have with wrongful death lawsuits? What percentage of their caseload is dedicated to wrongful death cases?
- How many cases have gone to trial and what were the results?
- Who will you talk with about your case? The lawyer? A paralegal or case manager?
- Can you get the names of past clients who will provide a referral?
Talk about a “survival action.” You may also be able to bring a “survival action” if your loved one survived for even a brief period of time after being injured. A survival action can be consolidated into one lawsuit with a wrongful death case, and you can get “punitive” damages in a survival action if your loved one died as a result of intentional conduct.
- Survival actions must be brought by the estate’s personal representative or the successor in interest if there is no personal representative.Talk with the lawyer about whether you will need to open up a probate proceeding.
Discuss fees.You should ask any lawyer that you meet with how much they charge. Sometimes, lawyers charge by the hour, but in wrongful death lawsuits many lawyers will offer a “contingency fee” arrangement.
- With a contingency fee, you don’t pay the lawyer any fees. Instead, they take a portion of any settlement or jury verdict if you win (typically 33-40%).
- You also have to pay for the costs of the lawsuit, such as filing fees, court reporter fees, and expert witness costs. However, some lawyers will advance you these costs. If you win, then the lawyer deducts the costs from your settlement or jury award.
Identify who to sue.You can only sue someone for wrongful death if their wrongful act or carelessness caused your loved one’s death.Your lawyer will talk with you about who you can sue.
- For example, if someone shot your loved one, then you can sue that person.
- You can also sue someone who was sufficiently careless, which is called “negligence.” For example, someone who accidentally went through a red light might have hit your loved one and killed them. You can sue the driver.
- You might be able to sue more than one person. If a car is defective, then you might be able to sue the car manufacturer as well as the company that manufactured the defective part responsible for the accident.
Filing Your Lawsuit
Provide advance notice if you are suing a healthcare provider.If your wrongful death lawsuit is based on the actions of a health care provider, then you need to provide at least 90 days’ notice of your intent to bring suit. Although you don’t have to provide written notice, you should nevertheless do so. Make sure to mention the following information:
- Your legal basis of the lawsuit.
- The loss you sustained (i.e., death of your loved one).
- The nature of the injuries suffered.
File a complaint.Your lawyer will start the lawsuit by drafting and then filing a “complaint” in court. Your lawyer will then arrange to deliver a copy of the complaint, along with a summons, to the defendant.In this document, your lawyer will provide the following information:
- your identity as the “plaintiff”
- whoever is being sued as the “defendant”
- the reason the court has power (“jurisdiction”) over the case—usually the defendant lives or works in California
- the facts and circumstances that led to the lawsuit
- the damages you have suffered
- a request for money to compensate for the damages
Read the defendant’s response.After you file a complaint, the defendant has a certain amount of time to respond. Generally, the defendant will file either an “answer” or a “demurrer.” A copy will be sent to your lawyer. Ask for a copy for your own records.
- In an answer, the defendant will respond to each factual allegation and either admit, deny, or claim insufficient knowledge to admit or deny.
- The defendant might also file a demurrer. In this document, they challenge how legally sufficient your complaint was. For example, they could argue that your complaint didn’t allege that they owed your loved one a duty of reasonable care. Alternately, the defendant could claim that you waited too long to sue.
Engage in fact-finding.Every lawsuit has a fact-finding phase called “discovery.” The purpose is to get all relevant information out on the table so that there are no surprises at trial. There are many different discovery techniques:
- Document requests. For example, you might want all of a doctor’s notes about your loved one’s treatment.
- Interrogatories. These are written questions you give to the defendant, who answers them under oath.
- Depositions. In a deposition, you ask the witness questions, which they must answer under oath. The court reporter takes down the questions and answers.
- Requests for admission. You can state facts and ask the defendant to admit that they are true. This is a good way to narrow down the issues in dispute.
- Subpoenas. This is a court order directing the defendant or a third party to turn over relevant documents.
Assess the need for expert witnesses.During the early stages of litigation, you and your attorney will need to discuss how if and how you will use expert witnesses. In a wrongful death action, expert witnesses are usually really important to help you prove that the defendant's actions caused the death. In addition, experts can help you quantify damages.
- Using experts will help connect dots in your case that would otherwise be difficult to connect. With that said, hiring expert witnesses can often be expensive. You and your attorney need to weight the pros and cons of using experts in certain situations.
Oppose any motion for summary judgment.After discovery concludes, the defendant will usually try to end the litigation immediately and have the judge rule in their favor. The defendant will do this by filing a motion for summary judgment, which tries to convince the judge that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. In other words, the defendant will have to convince the judge that, even if every factual assumption was made in your favor, you would still lose the case.
- you can defend against this motion by having your attorney file a response. Within your response you will provide evidence and affidavits showing the judge that there are factual disputes that need to be figured out at trial. If you are successful, the litigation will continue.
Consider settlement.You should seriously consider settling the lawsuit instead of going to trial. Settlement will allow you to avoid the stress of testifying. It also guarantees some money. If the defendant loses their summary judgment motion, they might be particularly anxious to settle.
- Talk about settlement with your lawyer. Remember that it is your decision whether or not to settle. Your lawyer is ethically obligated to tell you of settlement offers.
Deal with pretrial motions.Lawsuits do not proceed quickly. Instead, there are many pretrial motions that your lawyer will have to handle. You may also have to go to court, so keep in contact with your lawyer and stay on top of when court hearings are scheduled.
Get your evidence in order.Before trial, you will probably have to give the defendant a list of all witnesses you intend to call and a copy of your exhibits. You need to pull that information together. The judge will give you a deadline for handing over that information.
- Remember that witnesses can only testify as to their personal knowledge (unless they are an expert witness). For example, someone who saw the defendant hit your loved one with a car can testify as to what they saw.
- You might need an expert witness. For example, in a medical malpractice lawsuit, you will need an expert to testify as to whether the doctor’s treatment satisfied the prevailing standard of care and whether the doctor’s carelessness killed your loved one.
- Your lawyer should be able to find qualified experts for your case. In fact, your lawyer will probably consult with an expert early on to see if your case is sufficiently strong to bring to court.
Going to Court
Pick a jury.The case begins with jury selection. The judge will call a panel of potential jurors to the front of the court room and will ask them questions. Your lawyer probably will also ask questions. The purpose of the questions is to find out if the juror can be fair or if they must be excused for bias.
- For example, a juror might know the defendant. In this situation, your lawyer can ask the judge to excuse the potential juror.
- Your lawyer will also get some “peremptory challenges,” which can be used to excuse a juror without the judge’s permission and without needing to give a reason.
- A juror who isn’t excused by either your lawyer or the defense lawyer will be seated on the jury.
Deliver opening statements.After jury selection, each side gets to make an opening statement. Because you brought the lawsuit, your lawyer will go first.The purpose of an opening statement is to provide a roadmap to the jury of what evidence will be presented.
- The defendant’s lawyer gets to make an opening statement after you do.
Testify at trial.You will have various witnesses testify. For example, you can have witnesses testify as to what they saw. You will also have to testify. Even if you didn’t see your loved one die, you will have to testify as to your pain and suffering or loss of companionship. Remember the following tips:
- Listen closely to the lawyer’s question. If you don’t understand it, then ask for a clarification.
- Sit up straight and look at the lawyer. When you answer, turn to the jury and make eye contact.
- Don’t guess. If you don’t know the answer, then say, “I don’t know.”
- Always tell the truth.
Cross-examine the defense witnesses.After your lawyer presents your witnesses, the defense gets to put on a case.They can call witnesses, including expert witnesses. In a medical malpractice case, for example, it is common for a defense expert to take the stand and disagree with your own expert’s assessment of the evidence.
- Your lawyer will be able to cross-examine all defense witnesses. The purpose of cross-examination is typically to undermine the witness’s testimony. For example, your lawyer can point to inconsistencies or to gaps in the testimony.
Deliver a closing argument.Each lawyer can make a closing argument after all evidence has been presented. This is a chance for your lawyer to argue your case to the jury and to draw conclusions based on the evidence.
Wait for the verdict.The judge will read the jury its instructions and then allow them to retire to deliberate. The jury must assess the evidence based on the “preponderance of evidence” standard.This means it can only decide in your favor if it is more probable than not that the defendant caused your loved one’s death and your injuries.
Think about appealing, if necessary.If you lose, you might want to file an appeal. With an appeal, you ask a higher court to review the evidence and decide whether the judge made a serious enough error that the verdict should be set aside. If you win, then the defendant might also bring an appeal.
- If you want to file an appeal, you should move quickly. Talk over whether it is worthwhile with your lawyer and then file a Notice of Appeal in the trial court.
Collect on your judgment.If you win, you still have to collect the money you won from the defendant. Hopefully, the defendant will just pay. However, the defendant might not have the money or might refuse. In that situation, you might need to garnish their wages or put liens on their property.
Video: What is WRONGFUL DEATH CLAIM? What does WRONGFUL DEATH CLAIM mean? WRONGFUL DEATH CLAIM meaning
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