Wrongful death

If someone dies or is killed due to the negligence or misconduct of another, the survivors may sue for "wrongful death." These types of lawsuits seek compensation for the survivors' loss, such as lost wages from the deceased, lost companionship, and funeral expenses. 

A wrongful death claim exists when a person dies due to the legal fault of another person. That person could be the driver at fault in a car accident or a bartender who served alcohol to a drunk driver, among others.

Wrongful death statutes vary from state to state, but they generally define who may sue for wrongful death and if any limits may be applied to an award of damages. Originally, wrongful death statutes were created to provide financial support for widows and orphans

Who can sue for wrongful death?

State laws provide for recovery by a surviving spouse, immediate family members, children, and even parents of a deceased fetus. It all depends on your state’s wrongful death statute. Generally speaking, though, a suit for wrongful death is brought by the personal representative of the decedent's estate.

Every state has a civil "wrongful death statute," or set of statutes, which establishes the procedures for bringing wrongful death actions.

Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.

Wrongful Death Suits After Criminal Trials

Wrongful death lawsuits sometimes come after a criminal trial, using similar evidence, but are held to a lower standard of proof. Take, for example, the criminal and civil trials of ex-football star O.J. Simpson. He was found not guilty of murder because the criminal jury couldn’t find him guilty beyond a reasonable doubt. The civil jury, however, did find him liable (by a preponderance of the evidence) for the wrongful deaths of the two victims.

How to Prove Wrongful Death

To successfully bring a wrongful death cause of action, the plaintiff typically must show the following:

1) The death of a human being;

2) Caused by another's negligence, or with intent to cause harm;

3) The survival of family members who are suffering monetary injury as a result of the death, and;

4) The appointment of a personal representative for the decedent's estate.

Wrongful Death Damages

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the distributees paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.

Considerations When Hiring a Wrongful Death Lawyer

As with most lawsuits, few wrongful death lawsuits ultimately are tried before a jury. Due to the expense of litigation, lawyers often work out settlement deals to avert costly trials. Lawyers often can negotiate better plea bargains than the defendant could receive on his or her own.

If a loved one has died after an accident or injury caused by the negligence or misconduct of another individual, company, or entity, you may be entitled to bring a legal action for wrongful death against those responsible.

10 Guidelines For finding a good wrongful death attorney.

1. Ask around. Getting a referral from someone you trust can be an excellent place to start when you’re looking for a lawyer. But remember that the lawyer who did a divorce or reviewed a real estate deal for a friend probably doesn’t have experience with wrongful death cases. You don’t want to be someone’s first wrongful death client.
2. Find an expert. Specialists beat generalists, so you probably want a lawyer who specifically focuses on personal injury and wrongful death. Wrongful death cases are complicated, and you do not want an attorney who is just learning about this area of law.
3. Meet with all potential lawyers. Don’t sign anything until you’ve met and discussed your case with several possible attorneys. A good attorney is someone you will trust and feel comfortable with, since you’ll need to tell your lawyer everything and be completely honest. These cases can take years. Make sure you hire someone you trust.
4. Take a look at the Client Bill of Rights. Many attorneys will have this written down in some form or other. Those who don’t should be able to tell you verbally. You can see an example of ours in Appendix E. Figure out which ones (if not all of them) are important to you, and make sure you only hire a lawyer who agrees to abide by them.
5. Make sure your lawyer is willing to go to trial if you do not get a reasonable offer. Of course, the lawyer and the deceased’s family may not always see eye-to-eye on what constitutes a good offer, but if the offer is objectively unreasonable, your lawyer must be willing to go to trial. Few lawyers have the experience and are willing to take the time to do so.
6. Have your attorney explain all fees and costs up front. You don’t want any surprises, especially unexpected fees.
7. Look for a lawyer who is a member of the Oregon Trial Lawyers Association (OTLA) and the American Association of Justice (AAJ, formerly ATLA). Membership in these organizations shows that your lawyer is proud of what he or she does, cares about justice, and is willing to put money and time towards the cause of justice in Oregon (OTLA) and the entire U.S.A. (AAJ). This shows that they are in the profession because they care about justice for all, and not just to make a buck.
8. Find out about a lawyer’s caseload. If the “personal touch” is important to you, ask lawyers about how many cases they handle at a time. Wrongful death cases take a lot of time, so make sure your attorney has that time to give.
9. Make sure your lawyer is interested in educating you. Some attorneys just want to take your case and never talk to you, but for most people, an attorney who will guide you through each step of the process will be a better choice.
10. Make sure your lawyer has adequate malpractice insurance. Every lawyer in Oregon is required to carry at least $300,000 in malpractice insurance. A careful lawyer who takes wrongful death cases will carry much more than that. Do not be afraid to ask your lawyer how much malpractice insurance they have.