A Brief Overview of the Wrongful Death Litigation Process

Wrongful death suits allow certain surviving family members to recover damages for the death of a loved one resulting from a wrongful act. These cases can be complex, depending on the circumstances. Still, the help of a skilled and experienced attorney during a wrongful death litigation process can help you use that valuable time to start healing. At the same time, your attorney can act on your behalf to recover any compensation available for your loss.

Once your attorney has determined that the case is viable by doing a preliminary investigation, the wrongful death litigation process can begin. Though the cases may be complex, the litigation process itself is relatively straightforward. Here’s a look at some of the most important parts of a wrongful death litigation process.

Identifying the representative and beneficiaries

The first stage usually focuses on identifying the decedent’s survivors and designating the personal representative(s) for the decedent party’s estate and wrongful death claimants, who will act as the plaintiff(s). In California, the statute is very clear regarding who are considered survivors and wrongful death claimants, such as the decedent’s spouse, domestic partner, children, and possibly parents and other relatives who would be entitled to the property of the decedent under intestate succession laws.

Filing a claim

Once the survivors and wrongful death claimants, the “plaintiffs”, have been designated, a lawsuit is filed in court against the responsible party, the “defendant(s)”, for damages. These damages can be economic (such as loss of financial support) or non-economic (such as loss of companionship).  (If the claim is against the State of California or a local California government or government employee, a pre-suit claim must be properly filed with the public entity within six months of the death before state law claims can be filed in court.)  Following the court filing of the lawsuit, the process of discovery begins, which involves each side, making requests for relevant information and documents that can support their claims or refute the opposing side’s defenses. Also, this process involves the identification of witnesses who will later be asked questions under oath to establish key facts of the case. This will help determine the extent of damages that may be owed to the plaintiff.

Motions

The defendants have the right to file motions along the way to have the court toss out the case.  The first opportunity for such a motion is right after the complaint is filed to start the lawsuit.  This is called a motion to dismiss in federal court, or a demurrer in California state courts, and it asks the judge to decide that the complaint does not state a viable claim against the defendants.  Later, after discovery, the defendants often file a motion for summary judgment, asking the court to decide that the plaintiffs lack sufficient evidence to prove their claims at trial.  Both motions can potentially end the case, so it is critical that the plaintiffs’ attorney respond with strong legal and factual arguments.

Mediation or trial

Before a court date is set, the parties will most likely be required to engage in some Alternate Dispute Resolution (ADR), usually some form of mediation aiming to settle the matter out of court. However, if the parties cannot reach an agreement, they will get a trial date and rely on a jury or a judge to decide if the defendant is liable for the wrongful death, and if so, the monetary compensation that the plaintiff is entitled to. It’s important to keep in mind that this process can be lengthy and stressful. Relying on an attorney who is experienced in wrongful death litigation can take some of that burden off your shoulders.

Appeals

If the plaintiff wins, the defendants will often file an appeal to a higher court where a panel of judges will review the evidence and proceedings for any error.  This can add additional risk for the plaintiff, and certainly adds delay, usually one to two years.  The appeal process can result in the verdict being affirmed, or reversed, or a new trial granted, or other outcomes.  Most appeals are not successful, but all appeals must be taken very seriously and be carefully and thoroughly briefed and argued.

Consult with a lawyer specialized in wrongful death litigation

The circumstances surrounding a wrongful death case are often very tragic and can weigh very heavily on surviving family members. An attorney with proven experience in California wrongful death litigation knows this and he/she will go over the process with you, allowing you and your family to make an informed decision.

The civil rights attorneys at Haddad & Sherwin LLP have a long track record of winning wrongful death cases with results that include large settlements and verdicts for their clients, groundbreaking legal rulings, and important reforms to prevent future harms. At this time, Haddad & Sherwin LLP only handles wrongful death cases in California.