The common law definition of a wrongful death claim is a civil action that arises where damages are claimed against a party for causing the death of another, due to a negligent or careless act, possibly a criminal or reckless act. The breach of an established standard of care and the resulting harm ultimately leads to the death of an individual, giving rise to the claim. A wrongful death claim gives recognition to the fact that there is value in life. If a life is lost due to a negligent act, or a failure to act, there are lives left behind: spouses, children, and parents. The estate of the deceased individual has the right to pursue compensation for the things that those left behind have lost—the balance of enjoyment in their life, the companionship of those they had been with, their ability to contribute to the welfare and safety, both economically and non-economically, of their family members.
Wrongful death claims are a type of personal injury claim, and require experienced and sophisticated analysis. The demands of these cases, both from a case management standpoint and a client counseling standpoint, include making the families aware of the process and potential outcome. Experienced attorneys, proficient in handling wrongful death claims, will diligently keep the family apprised of the progression of the case, help manage expectations, and clearly explain the process as it unfolds.
Who Can Bring a Wrongful Death Lawsuit?
The individual who can bring a wrongful death lawsuit is left up to the probate court. An application is filed with the probate court after the decedent's death, seeking an appointment as the fiduciary of the estate of a deceased person. The fiduciary is either someone who is named in the will, if the individual did have a will, and if not, most often a family member who applies to be the fiduciary of the estate. The fiduciary of the estate then has the ability to hire a lawyer on behalf of the estate, and pursue a wrongful death claim.
Misconceptions About Wrongful Death Cases
- The person bringing the action is solely looking for monetary compensation. More often than not, the parties or family members that are bringing these claims are looking for answers. They are looking for accountability. They are looking to make changes in the way people conduct themselves, or facilities conduct themselves, or the way that individuals are being treated. Often, they have a sense that somebody did something wrong or that an event occurred as a result of someone's negligence or failure to act.
- The generalization that when hiring a law firm to pursue a catastrophic loss or wrongful death claim, the outcome will likely be the same from firm to firm. It may be thought that a wrongful death claim has a certain value, and that going to one lawyer or another is an interchangeable experience. There are several considerations when hiring an attorney in a wrongful death claim and results may vary from firm to firm based upon the experience, talent, and persistence of the principal attorney pursuing the case on your behalf. There is much more at stake for most families than monetary compensation. Answers, explanations, and accountability most often remain of primary concern.
Can a Wrongful Death Claim be Handled Without an Attorney?
There is not a legal requirement that a claimant have an attorney. The question of whether a lawyer is necessary is secondary to the overriding question of whether a lawyer provides value. In our experience, a pro se party, which is a party representing themselves, is a risky and dangerous approach. The courts are not in a position to give legal guidance to an unrepresented party. Experienced legal guidance is of the utmost importance here.
Courts, and the tort system in general, are a rule-driven infrastructure. It is similar to driving on the highway. If you do not know the rules, you are going to cause an accident, you will get lost, and you are going to be confused. Oftentimes the probate court will advise parties to seek a legal representative. They cannot give them legal advice. They very often identify situations where they believe the fiduciary needs legal assistance and direction. Obtaining capable legal representation is the recommended method to handle these matters.
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