How Does Wrongful Death Litigation Affect Surviving Family?
Wrongful death. It’s difficult to think about the loss of a loved one. Even under natural circumstances (old age, after a long and happy life), It’s difficult to think of losing someone close to us. However, when a person dies due to the recklessness of another, the surviving family suffers mentally and financially. This mental anguish brought upon the surviving family after wrongful death may entitle them to pursue legal action.
A victim of wrongful death may be the sole income for their family. This leaves the family not only in emotional anguish, but in financial distress as well. When a child loses the parent that provides for him or her, that minor suffers the catastrophe of no longer having Mom or Dad. Furthermore, the anxiety of worrying about who will be there for their needs. Where will the minor live? Who will care for them? Who will love them? This, too, is under consideration when litigation follows a wrongful death.
Within this article, a followup to What is Wrongful Death in Personal Injury? we provide further insight into the legal side of seeking justice after wrongful death.
Why is wrongful death litigation so complex?
Personal Injury lawyers meet families during the most difficult period of their lives. However, Personal Injury lawyers pursue civil justice, and therefore do not involve themselves in criminal aspects of a case. Thus, in our wrongful death articles we choose look at this area of law from the standpoint of a Personal Injury attorney. Civil law and criminal law are separate entities, and lawyers pursue them as such.
The reason for separating civil law and criminal law is simple. There are many complex differences between these lawsuits. Civil lawsuits are pursued by Board Certified civil trial lawyer. Wrongful death litigation only becomes a criminal case, if criminal charges are brought against the defendant.
How do finances take a hit after wrongful death?
An experienced lawyer is there to seek the maximum compensation on behalf of the family. Surviving family must have stable income after the wrongful death of a family member. However, always remember nothing can replace the loss of a family member. Compensation is there to reduce stress, medical bills, lifetime mental health and grief counseling, and funeral expenses.
What happens after an accident resulting in wrongful death?
When a family suffers a wrongful death, a Board Certified lawyer should be retained as quickly as possible. Handling sensitive cases such as wrongful death must be reserved for Board Certified lawyers. These are lawyers who understand the emotional and mental toll taken on the surviving family members. The sensitive subject of death is not easy for families. Mental anguish occurs when the time comes to share the excruciating and confidential details with their lawyer. Maintaining sensitivity and professionalism to take a case all the way to trial is best left to a lawyer with the credentials to do so.
It’s important that once retained, the lawyer acts quickly on behalf of the family. The statute of limitations in the state of Florida is (2) two years from the time of the victim’s death. If time runs out, the Statute of Limitations will kill the case, no matter how valid the claim.
What is the “standard of proof”?
“[…]the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other.”
Looking at this principle in the context of Personal Injury law, the court would use “preponderance of evidence” to determine the standard of proof. “Preponderance of evidence” is a principle in civil trial in lieu of “beyond a reasonable doubt”. The latter is strictly for criminal cases.
The standard of proof is just one area of wrongful death law and that many factors must align for a successful outcome. In these cases, successful means justice for surviving family members and they receive fair compensation.
Wrongful death factors
The factors for successful wrongful death litigation are as follows:
- A person passes away.
- The death must be the cause of recklessness or negligent actions of another or with the sole intent to cause harm, maim, or kill the victim.
- Surviving family who now suffer financial ruin due to losing a provider.
- Appointing representation for the decedent’s (victim’s) estate.
The circumstances surrounding the death make up a large portion of the case as well:
- Medical malpractice
- Nursing home abuse and/or neglect
- Occupational exposure that isn’t an occupational hazard (i.e.: toxic substances, hazardous weather conditions where the victim was forced to work under the threat of possible job loss, negligent security)
- Criminal actions
- Death during an activity with supervision
Wrongful death circumstances
One aspect of wrongful death that weighs heavily in determining damages are circumstances surrounding the death.
These factors under can usually include:
- Loss of income or lost wages. If the decedent was unemployed at the time of death, a judge or jury will factor in the deceased’s last known earnings. Future earnings will be factored in if the victim was only temporarily out of work.
- Loss of a parent. Parental guidance is another factor under consideration when determining damages. During wrongful death litigation a legal guardian will be determined by the court to care for him or her. This guardian must be able to provide similar insight, love, and life lessons that Mom or Dad could provide.
- Dependents. Did the deceased had any dependents at the time of his or her death? Children of the victim are factored in, as the victim was the adult breadwinner in the home.
What is a wrongful death verdict during trial?
Financial injury is the measure of damages in wrongful death litigation. This measure, on the legal side, is “pecuniary injuries”. The judge considers several important factors before determining damages. The factors taken into consideration include: loss of support, termination of inheritances, medical and funeral expenses for the decedent. Also under consideration is any financial need that is no longer being met for the family of the victim.
Lastly, it’s important to look at “pecuniary loss” within the context of Personal Injury law.
What is “Pecuniary loss”?
Once a financial injury determination by the judge occurs, age, health, earning capacity, life expectancy and intelligence of the victim then factor in. This is compensation the family hopes will be in their favor. However, the process of a wrongful death trial is lengthy, and a verdict comes only at the very end. Due to the long process of trial, the surviving family members living circumstances are always under consideration during this phase of wrongful death litigation.
While it may seem like a forthright process, wrongful death litigation is more complicated than it appears (thus why only experienced lawyers should take the lead in wrongful death cases).