There are several actions a wrongful death law firm must accomplish as soon as it begins working on the case:
- Ensure that the Personal Representative for the estate has been appointed and that the probate estate has been opened whenever required
- Determine which individual and/or entity may be at fault
- The wrongful death attorney may also have a choice as to whether to file in federal or state court, and thus is able to select the more advantageous forum.
- Determine which “notice” provisions are required
- Develop a discovery strategy
Selecting the Jurisdiction and Choice of Law for Filing the Wrongful Death Claim
The first consideration in a case is to determine which courts are legally empowered to hear the case. These courts are said to have “jurisdiction” over the causes of action and the parties. The wrongful death attorney looks at all the states that could hear the case and selects the state in which the resultant law will most favor the surviving family’s interests. The wrongful death attorney must balance the applicable states’ laws, the profiles of the judges who might hear the case, and the jury makeup of the various courts in which the suit may be filed. Only after weighing and balancing these factors can an appropriate decision be made as to where the action should be filed. Then, of course, the attorney must scrupulously follow whatever detailed procedural rules apply to the chosen jurisdiction.
The Preparation and Prosecution of the Claim or Suit
Traditionally, defendants settle claims favorably to a claimant only when they must; they tend to hold onto a claim as long as possible in order to keep their money actively earning interest for them and in anticipation of possibly a less expensive settlement later. Optimum settlements usually occur because the defendants recognize that your law firm will be ready to conduct an aggressive, vigorous trial if they do not come to reasonable settlement terms.
To counter this tendency, the attorneys representing the claimant must maintain constant pressure on the defendants. This is done by successful preparation and prosecution of the claim.
Damages to Which the Personal Representative and Estate Are Entitled
Damages arising from a wrongful death fall basically into four categories: The first is the economic loss suffered by the estate or heirs. The second category is non-economic loss, which may include grief, anguish and loss of society and companionship that a surviving family member suffers. Thirdly, there may be survival damages that the decedent suffered after the accident but before they died. These include the pre-impact terror experienced (aircraft accidents), all pain and suffering, the value of a loss of a life, and any pre-death economic losses incurred as a result of the accident. Finally, there are punitive damages. Punitive damages are available in cases when the court and jury, based upon all the facts and circumstances, decide that the defendant’s conduct is of such a reprehensible, malicious nature that the defendant should be punished economically, and thus also serve as a warning to all other corporations and individuals not to commit similar acts.
As discussed in the section above concerning jurisdiction, a wrongful death attorney will research the various state laws to enable the attorney to decide which state’s applicable laws favor the surviving family members’ claims. Below is an explanation of these four areas of damages. (Some states allow recovery in all four categories, others restrict recovery to only one or more of the categories.)
Loss of support
Loss of inheritance
Loss of services
Funeral and burial expenses
Loss of society and companionship
Grief and anguish
Loss of consortium
Pre-impact mental suffering
Conscious pain and suffering
Hedonic loss is compensation for the “loss of enjoyment of life.”
Pre-death economic losses
Punitive damages are a monetary penalty deemed necessary to punish and deter a defendant and other potential wrongdoers from committing the same or similar willful, malicious or intentional acts. The amount of punitive damages is usually based, in part, on the net worth of an individual or company. These damages can, and often do, amount to many millions of dollars against wealthy companies in the rare cases when such damages are awarded.
The respective defendants and their insurance companies will most certainly be represented by legal experts and claims adjusters with years of experience in just this area of law. They will have the research staff, nationwide databases, the ability to conduct legal research in all of the fifty states, and the financial means to vigorously defend your case for their own ends. Baum Hedlund can and will, given the opportunity, level the playing field and do the same for you.