Victims can hold the person who injured them accountable for his or her negligence in court and receive money damages as compensation.
But what happens if the victim dies as a result of the accident?
Under the common law, a personal injury lawsuit did not survive death. If the victim survived, the person responsible could be sued. But when the victim died, the defendant walked away completely free.
Fortunately, California recognizes wrongful death lawsuits. Certain family members can bring these lawsuits for compensation against whoever caused their loved one’s death. Read on for more information about how wrongful death lawsuits work in California.
1. Start by Identifying the Party Responsible for the Death
Under California law, a wrongful death is one caused by the negligent or intentional act of another person. In practice, many wrongful death lawsuits are brought after:
Most wrongful death lawsuits are brought asserting negligence, which means a failure to exercise reasonable care that resulted in the victim’s death.
For example, a motorist owes a duty to those on the road around him to operate his or her vehicle in a safe manner. If he fails to do so, and his accident causes death, then he is responsible for wrongful death of his victims.
2. Check if You Can Bring a Wrongful Death Lawsuit
California’s statute empowers only certain family members to bring a wrongful death lawsuit, when a victim dies as a result of the fault of another:
● A surviving spouse or domestic partner
● Surviving children of the deceased
● If no spouse/partner or children are living, certain designated family members can bring a lawsuit, generally parents or siblings.
California’s law also allows other people to bring a wrongful death lawsuit if they were financially dependent on the deceased. These people include:
● The deceased’s step-children
● The deceased “putative” spouse, and the children the deceased had with this putative spouse
● The deceased person’s parents
Grieving family members are not expected to know whether they can sue. Instead, if you have a question about whether you can bring this lawsuit, you should check with an experienced attorney who can review the circumstances or read our article on who can file a wrongful death suit.
3. Hire an Experienced California Wrongful Death Attorney
Wrongful death lawsuits are incredibly complicated, and grieving family members should not handle them alone. Instead, hiring a qualified California attorney will allow you to focus on your family while a lawyer does the heavy lifting.
At GJEL, we offer a free initial consultation to all potential clients so that they can meet with us. We are happy to discuss your case and answer any questions you have. Many clients want to know about our experience or whether we think they have a valid case.
We will also discuss our fee arrangements so you can decide whether you want to hire us. These consultations come with no strings and are completely confidential. If you don’t like what you hear, you are free to meet with other Bay Area wrongful death lawyers and come back to us if you want.
4. Investigate the Accident & Death
You need persuasive evidence that can convince a jury that someone else is responsible for your loved one’s demise. For example, if your loved one died in a car crash, you will need proof that the person who struck them was negligent. The fact that your loved one died is not enough, by itself, to prove that someone else is to blame.
We begin a case by canvassing the factual record as it currently stands. Often, this means:
● Reading the police report, if one was filed
● Speaking to witnesses
● Looking at medical records, including the coroner’s report
● Analyzing damage to a vehicle, if a loved one died in a car accident
This investigation is preliminary but helps us get a handle on whether there is a valid claim and against whom.
We also need some sense of whether our client’s family member contributed to their accident in some way, through his or her own negligence. In a car crash, for example, a victim might have failed to use a turn signal before another vehicle rear-ended them.
In California, the victim’s contributory negligence does not bar a wrongful death lawsuit, but it will reduce the amount of compensation family members can receive. For example, if the deceased was 50% responsible for a car crash that killed her, then family members will only receive half the compensation they otherwise could.
5. Make a Demand for Compensation on the Defendant
Many defendants, or their insurers, settle a dispute rather than go to trial. Often, it is beneficial to start these settlement negotiations before filing any lawsuit.
Settlement negotiations can be long and frustrating. There is no guarantee that a defendant will settle, but we generally recommend that our clients give them a chance to do so.
First, we write a demand letter to the defendant and their insurance company explaining the death and what we believe caused it. We can also talk about the relevant law, and how it leads to the conclusion that the defendant is responsible for the death.
In our demand, we also request compensation for applicable losses, such as:
● Loss of anticipated financial support. For example, if your parent died, then you can recover the money he or she would have provided you, according to the evidence.
● Loss of the value of household services. If your wife died and she did all of the cooking, cleaning, and laundry, then you will need to hire people to perform these tasks in the future. You can claim compensation for these costs.
● Loss of love and community. These intangible losses are harder to calculate but are nonetheless very real.
Under certain circumstances, the deceased person’s estate, or closest heir, can also bring a lawsuit, called a “survival action,” and receive compensation for:
● All medical bills to treat the deceased’s final illness or injury
● Punitive damages, if the defendant’s behavior was particularly blameworthy
Each wrongful death lawsuit is different, and estimating the amount of compensation our clients can claim takes time. Once we have settled on a number, we can request that the defendant pay that amount; otherwise, we will need to file a lawsuit.
Many insurers will settle months after the demand letter. However, many will not, particularly if there is a large amount of money at stake. Instead, they might make a low counteroffer, which we can reject. This back and forth can take months or more.
6. Pay Attention to Deadlines
California does not give family members an unlimited amount of time to file a wrongful death lawsuit. Instead, the state’s statute of limitations gives family members two years from the date of their loved one’s death. There are much shorter periods that apply to lawsuits against government entities, and to other particular circumstances. If our clients wait too long, then they will forfeit any chance to receive compensation and hold the defendant responsible for the death.
When our clients reach out immediately, we often have enough time to begin negotiations with a defendant. However, some clients wait until the last minute, which means we must act quickly and file a lawsuit in the appropriate court to preserve their rights.
Even if a client wants to settle the case, often the only leverage we have is a pending suit in court. Without that, a defendant seldom has an incentive to come to the bargaining table and offer a fair settlement for the death of a loved one. Because awareness of the statute of limitations is so important to preserving your case, we advise all people to immediately reach out to an attorney after the loss of a spouse, child, or parent.
7. File a Wrongful Death Lawsuit
If the defendant or his insurer refuses to settle, we will likely proceed to file a complaint in civil court for wrongful death. This complaint will lay out important facts, such as the date and time of death, what caused it, and sometimes the amount of compensation we are requesting.
After filing the complaint, we serve a copy on the defendant, who typically has 30 days to file a response. If they fail to respond to the complaint, which is unlikely, then our lawyers can move for a default judgment against the defendant.
8. Read the Defendant’s Response
A defendant typically files a response and sends us a copy. In the response, they will admit or deny the factual allegations made in our complaint.
They might also raise other issues, such as a claim that you do not have a valid cause of action, or that the court lacks the power to hear the case.
9. Engage in Fact-Finding for the Lawsuit
Most lawsuits have a long process called “discovery,” which is the fact-finding phase of a lawsuit. Although our attorneys can uncover some facts before filing a lawsuit, discovery allows each side to put all their cards out on the table.
For example, our lawyers can find out information using the following techniques:
● Request important documents. For example, we will probably want to see a copy of the defendant’s insurance policy, which will tell us how much money is potentially available to pay out in compensation. Requesting documents is called a “Request for Production.”
● Ask the defendant questions in writing. These are called “interrogatories.” The defendant can also ask our clients questions, which they also must answer under oath and in writing.
● Ask the defendant questions in a deposition. Depositions are typically held in a lawyer’s office and are recorded. Depositions allow for follow-up questions and are effective at uncovering unknown information. In certain circumstances, deposition testimony can be introduced at trial.
Discovery can take months, and often is the longest phase of a wrongful death lawsuit. However, at the end of discovery, both sides should understand the facts “inside and out,” which means there should be no surprises if the dispute ends up in front of a jury.
Hire an Expert Witness, if Necessary
Some wrongful death cases require the help of an expert witness. For example, some accidents require the help of an accident reconstruction expert who can help the jury visualize what happened based on the evidence known.
Other cases will require medical experts if there is some question about whether an accident caused your injuries or the extent of them. Medical experts are typically current or former doctors with excellent credentials. They can review the evidence early on to determine if our clients have a valid legal claim. An expert also will give a deposition (usually) and must prepare extensively. If there is a trial, then an expert usually testifies before the jury as well.
Not every case requires an expert witness. One advantage of working with GJEL, however, is that we can find experts with sterling credentials who are also adept at explaining complicated issues to a jury.
10. Attend Mandatory Mediation
The California courts try to resolve disputes without using trials. To that end, your judge might demand that you attend a settlement conference overseen by a retired judge or lawyer serving as a mediator. The purpose of mediation is to get each side talking to each other so that they can try to find common ground to resolve the case. If agreement is reached, then the parties draft a settlement agreement and submit it to the judge.
The settlement agreement is binding on the parties.
Mediation typically lasts one day, but complex cases can often get two days. Mediation happens usually 9-18 months into the case, although it might happen earlier.
At GJEL, we understand the mediation process inside and out, and can help you analyze any settlement offer so that you do not settle for too little money. As part of any settlement, our clients must sign a release, which protects defendants from future legal liability for the accident. As a result, it is vital that our clients agree with the settlement before signing off on it. Many of our clients are very pleased to settle their lawsuits, which guarantees them some money and helps them avoid the risks of trial.
11. Attend The Wrongful Death Lawsuit Trial
If mediation and settlement fail, we are prepared to go into court to vindicate our clients’ rights to compensation. Jury trials usually take a week or more to complete, though sometimes they take much more time, especially if the case is big or complex.
Each side in a trial can present witnesses and cross-examine the other side’s witnesses. At the end of the trial, the jury retires to deliberate. Juries in California civil trials are not required to be unanimous. Instead, at least 9 of 12 jurors must agree the defendant is liable for wrongful death.
If you are unhappy with the jury’s verdict, you might be able to appeal to a higher court. Appeals are time consuming and costly. We do not recommend an appeal unless the judge made a serious legal error, or there is no evidence to support the jury verdict. Before filing an appeal, we discuss with our clients the costs and benefits so that they can make an informed choice.
Of course, if our client wins, the defendant can also appeal, though there are protections while the appeal works its way through the court system. Wrongful death cases sometimes settle at this stage.
12. Disbursement of Funds
If we win the case, then we disburse funds to our clients after deducting our agreed contingency fees and costs. Typically, we disburse funds within 30 days of settlement, or payment after the jury verdict. We provide our clients an accounting of all our expenses.
GJEL’s Record of Success with Wrongful Death Cases
Our track record is impressive, and we have obtained over $50 million in compensation for our clients. Some of our results include:
● $13.6 million for the wrongful death of a spouse
● $11.7 million for a wrongful death in a traffic accident
● $10.6 million settlement for death caused by a defective product
● $4.5 million against a utilities company for a wrongful death in a car accident
● $4 million for the wrongful death of a child
● $1.9 million for a wrongful death caused by a defective tire
No lawyer can promise a result, and we don’t claim to. However, our results stand as a testament to our knowledge and skill in bringing California wrongful death lawsuits.
Speak to GJEL Today
After the death of a loved one, you might not know where to turn or what to do. In this stressful time, you are probably worried about how you will support yourself and your family, especially if your family’s main breadwinner has died. Dependent family members often wonder if they will need to move out of their homes and apply for public assistance, or whether they will be able to depend on the help of other family members
Fortunately, GJEL is here to help. Our Bay Area wrongful death attorneys have sued many individuals and businesses on behalf of many family members, and we know how to bring and pursue these cases the right way. We will fully analyze the circumstances surrounding the death of your loved one, and can usually provide an estimate of the amount of compensation you might receive.
If you want to meet to discuss your case, please contact a GJEL attorney today. You can reach us by calling or sending an online form. Please avoid delay.