Brad Nakase, Wrongful Death Attorney
The purpose of a wrongful death lawsuit is to claim financial compensation for the loss of a loved one due to another person’s negligent actions or misconduct. A wrongful death lawsuit works similarly to a personal injury lawsuit, and the plaintiffs have a similar burden of proof to a personal injury plaintiff.
The reasons for filing a wrongful death lawsuit include:
- Compensation for losing the earnings or other types of support of the deceased
- Compensation for pain and suffering, loss of consortium, loss of support and guidance, etc.
- Reimbursing the estate for funeral costs and medical bills
Depending on the state you live in, there may be laws limiting who can file a wrongful death lawsuit and what kind of damages they can claim.
1. Do I Have a Case For Wrongful Death?
When you talk to a lawyer about a wrongful death lawsuit, they will look for four things when determining if you have a case. These are called the legal elements, and if you cannot prove all four things exist, then you will not win your case:
- Negligence or Intent – The plaintiff must prove that the death was caused by either negligence or intentional actions (misconduct).
- Breach of duty – The plaintiff must prove that the defendant owed the deceased a duty and that they breached that duty, resulting in their death. For example, doctors have a duty of care to their patients to heal them and not harm them. All drivers owe all other road users a duty to drive safely and follow road rules.
- Causation – That the defendant’s actions and their breach of duty caused the death of the plaintiff’s loved one. If there is no causation link, then the plaintiff does not have a wrongful death lawsuit.
- Damages – The plaintiff has a duty of care to name the damages and present evidence to prove them. We will discuss the kinds of damages a plaintiff can claim in a wrongful death lawsuit later in this article.
If you are planning a wrongful death lawsuit, you should hire an attorney experienced in that area of law. They will help you prove all the elements and may even help you claim damages you were not aware you could claim.
2. What Is the Burden of Proof in a Wrongful Death Lawsuit?
Wrongful death lawsuits are civil cases, so the burden of proof is a preponderance of the evidence. This means that the plaintiff must present proof suggesting their legal claims are more likely true than false.
To prove the wrongful death lawsuit and the damages the plaintiff is claiming, they can present the following types of evidence:
- Documentary evidence like police reports, medical files, etc.
- Bills and invoices for costs like medical bills, funeral expenses, etc.
- Witness testimony
- Expert witness testimony (medical professionals, economists, psychologists, etc.)
- Proof of earnings of the deceased (payslips, etc.)
Your wrongful death lawyer will help you to collect evidence and present it in a way that strengthens your case.
3. The Process of a Wrongful Death Lawsuit
The first step is determining if you can file the wrongful death lawsuit. You need to know if your relationship with the deceased allows you to file a wrongful death lawsuit; in some states, only the deceased’s spouse, children, or parents can file. You also need to determine if you are still within the statute of limitations.
Once you have decided that you can file a wrongful death lawsuit, you should consult an attorney for a case evaluation. Most lawyers will offer free case evaluations that allow you to discuss your case and see if you have a strong enough case to file a wrongful death lawsuit. The lawyer will examine the evidence you have and hear the facts. From there, they will inform you of your legal options and answer any questions you may have. Depending on the information you have given them, they may give you an approximate valuation to give you an idea of the compensation you may claim. This is a rough estimate because several factors influence the compensation you may receive in a wrongful death lawsuit.
During the wrongful death lawsuit, you may need to attend meetings to try and resolve the issue before trial. These may be mediation meetings or even settlement discussions. Bring an attorney to these meetings to get expert advice and determine if any settlement offers or offers of restitution are fair. Your wrongful death lawyer will tell you the pros and cons of all available options. For example, a settlement may resolve the case much quicker because going to trial could take up to a year longer to finalize the case. However, you may be able to get much more if you win the trial instead of taking the settlement.
If you win your wrongful death lawsuit or agree on a settlement, then the check for the settlement or damages will be sent to your attorney. Your lawyer will take their fees and any other legal costs and send you the remainder. If you were claiming funeral costs or medical costs borne by the estate, that portion would be sent to the estate before sending the rest to you.
Wrongful death lawsuit settlements are not subject to inheritance, income, or estate tax.
4. Calculating Damages in a Wrongful Death Lawsuit
There is no easy formula for calculating the damages you may receive in a wrongful death lawsuit. Several factors may influence the amount you receive, and many of the damages are intangible, so it depends on how well you can prove them.
Some of the damages you may claim in a wrongful death lawsuit include:
- Medical costs
- Hospitalization costs
- Funeral and burial costs
- Loss of potential earnings
- Loss of income
- Loss of non-financial services provided (e.g., Childcare, homeschooling, repairs, etc.)
- Loss of consortium
- Loss of inheritance
- Pain and suffering
If you think you have a wrongful death lawsuit or are unsure and want to seek legal advice, contact Nakase Law Firm. We will explain the complex process of a wrongful death lawsuit and answer any questions you may have. Our lawyers are sympathetic in your time of grief and can offer practical legal advice to help you explore all options available to you.
Working with Brad Nakase and his team of wrongful death lawyers shows the defendant that you are taking the case seriously. He and Nakase Law Firm are well-known in the California legal community for winning personal injury and wrongful death lawsuits and recovering substantial compensation for their clients. Come in for a free consultation and explore your options.