WHAT WILL HAPPEN IF I WANT TO SUE FOR WRONGFUL DEATH?
Wrongful death cases can be a long process. While you shouldn’t ever hesitate to make a claim if you feel that you are entitled to compensation, you should know what you’re getting yourself into. That is why Robert Baker, a Parkland, FL personal injury lawyer, has put together this guide describing what you should expect step by step.
FIRST: You make the call to the lawyer’s office, perhaps a first for you. Tell them that you’d like to talk to a lawyer about maybe suing someone for wrongful death or injury. Also verify that there is no charge for such an initial consultation. Look else where if there is. You should be prepared to make an appointment to go to the lawyer’s office. This is too important to try to handle over the phone.
SECOND: You meet the lawyer. You definitely want to meet the lawyer who would handle such an important issue for you. You can look the lawyer in the eye and find out if you are comfortable with him/her. YOUR FIRST QUESTION IS: DO YOU HAVE A CONFLICT OF INTEREST IF YOU REPRESENT ME? After you’ve told the lawyer your whole story is a bad time to discover that this firm represents the same corporation you are suing.
THIRD: Do not be shy about politely asking the lawyer some important questions. How many years in practice? Is wrongful death and personal injury his/her specialty? Will he/she be the one who handles your case all the way through? Will less experienced lawyers be doing things like motions and depositions (sworn question & answers in lawyer’s office prior to trial)? Who will be your primary contact: the primary lawyer, an assistant lawyer, or a paralegal? Are you expected to advance any money for costs and expenses of litigation? (The answer should be “No.”)
FOURTH: If you are still interested in dealing with this firm, tell the lawyer your story. Factors that will bear on his/her decision to represent you will include facts about the decedent’s life. Be candid, and reveal even the warts as well as the good. How close was this person to the family? How much did he/she earn? Who are the decedent’s dependents, and what are their particular needs? How did the death occur? Bring along any documents you have (police reports; doctor’s or coroner’s reports describing injuries or cause of death; letters from attorneys or insurance companies). Be sure you don’t give up your only copies, until you make the decision to hire the lawyer.
FIFTH: There is nothing wrong with interviewing several firms if there is time. There is no need to hide this. Tell the lawyer you can’t sign a contract today, because you want to interview one more lawyer before deciding. When you decide, he should offer a written contract without being asked. Read it before signing. Ask questions about any part you don’t understand. One word of caution about shopping for a lawyer. If you are commencing the search shortly after the accident (which you should), time is a factor. Wrecked cars get crushed; skid marks are washed away in the next rain; a construction site’s dangerous condition can get paved over; witnesses can die or move away; etc. Try to schedule your interviews in close succession so the process does not take weeks. If you find a lawyer you feel comfortable with, take the plunge.
SIXTH: You give the lawyer written authorizations to obtain private records and documents so he/she can investigate your case and preserve evidence. Hopefully you did not wait until 364 days after the accident (one year statute of limitations on most cases). If a governmental entity was any part of the fault, there is a six month statute to make a claim, so don’t wait.
SEVENTH: The lawyer might feel there is a chance of settling before suing, so he may delay filing suit. If he can’t settle, a complaint is filed in court. Usually the lawyer signs this for you. He takes care of having a process server serve the summons and complaint on the defendants (the people at fault). You are the “Plaintiff,” the person suing.
EIGHTH: “Discovery” commences. This means the exchange of documents, information and testimony out of court. Either side can send written questions (called “interrogatories”), a demand for deposition testimony of witnesses or plaintiffs, or demands for relevant documents, photos, etc. The other side may resist this, and your lawyer may go to a judge on a “motion”, a request for a court order that they comply with your lawyer’s requests. He/she may resist THEIR requests for some of your personal records that have nothing to do with the case.
NINTH: You will have to work with the lawyer to prepare responses to the interrogatories, and then swear in writing to the accuracy of your responses (“Verification”). Important: when the time comes for YOU to give oral testimony in deposition, you MUST meet with the lawyer in advance for an hour or two to be prepared for your testimony. There are a lot of “Do’s” and “Don’ts”. You might even want to ask the lawyer in your first interview before hiring him/her how long preparation for deposition testimony takes. You must be THOROUGHLY prepared for this critical event. If the answer is “ten to fifteen minutes,” that is a often a danger sign. Keep looking.
TENTH: All cases go in waves. There are periods of intense activity, and then perhaps weeks or even months pass without a lot of activity. A lot of what your lawyer does will not directly involve you, so you won’t even know she is busy on your case. You should not be shy about calling for updates if you have heard nothing in a long time.
ELEVENTH: Your lawyer will undoubtedly hire experts to help him. These may be physicians, engineers, economists, or accident reconstructionists. You may need to co-operate with them at your lawyer’s request.
TWELFTH: You may be ordered by the court to mediate or arbitrate your case. Mediation is a meeting with the parties and lawyers and one neutral mediator whose function is to try and settle the case. He decides no issues or facts. He just tries to find a mid-ground for settlement. Arbitration is different. The arbitrator hears evidence (usually in her office) and then renders a “verdict” as to who wins, and if you win, how much. However, either side can reject this decision and demand a trial with a jury. It is not necessarily a waste of time though, since this process can result in narrowing the gap in settlement positions. About two months before trial the defense may also file a motion to have your case thrown out on legal grounds (called a “summary judgment motion”) Your lawyer will be very busy on this, and may need you to sign sworn declarations to combat this motion. Do not be upset if one “cause of action” (a separate theory of the case pleaded in one complaint) out of six gets dismissed. Your lawyer might have included one that was a reach, while the others are strong.
THIRTEENTH: If your case hasn’t settled yet, a “Pretrial” and a trial date are set by the court. At this point, you are likely eight months after filing the complaint. It can be even more or less. The Pretrial is another conference to try and settle the case. This time the “mediator” is usually a judge, though in some counties it may be a panel of lawyers. If you still don’t settle, your lawyer and you will be preparing for trial, if you haven’t started to do so already.
FOURTEENTH: Last minute discovery: depositions of experts. You do not have to attend any depos besides your own, but the plaintiffs and defendants always have the right to do so. You will again meet with the lawyer to prepare your trial participation. Yes, you will have to be present the whole trial. You’ll have to arrange vacation time. Unfortunately, sometimes the trial is then continued (postponed). Sometimes this can’t be helped, and it does not suggest that your lawyer is sleeping on the job.
FIFTEENTH: The trial. It begins with legal motions between the lawyers and the judge in the judge’s chambers. You are not present then. Your lawyer will inform you of any rulings that affect the evidence that will be allowed before the jury. (You must NEVER mention the defendant’s insurance to the jury, for example.) The jury is selected. Most judges allow the lawyers to question the jurors to find out their biases. They can then reject some without giving an explanation. Twelve jurors and usually one or two alternate jurors will be sworn, and all will listen to the evidence. You need nine out of twelve to win. An alternate juror steps in if a juror gets sick or otherwise can’t continue.
SIXTEENTH: After opening statements to the jury, your lawyer begins calling witnesses and questioning them for the jury. The other lawyer(s) then question them (cross examination). When your lawyer is done putting on all his witnesses and offering all the exhibits into evidence he/she wants, then he/she “rests” your case, and the other side begins offering their witnesses and evidence. When they “rest”, your lawyer may put on more (rebuttal) evidence to contradict or explain defense evidence. Then comes closing arguments by all the lawyers, and the judge instructs the jury as to the law which controls your case.
SEVENTEENTH: At your trial, the judge makes all the decisions of law. That is why he “instructs” the jury on the law. However, the jury decides all the disputed “facts,” such as who was at fault, whether you (or the decedent) were partially at fault too (which reduces your award), and how much your case is worth.
EIGHTEENTH: Your case can settle at any time during trial. If it happens at trial, it most often will be on the first day, sometimes the second or third. Rarely, a case settles while the jury is secluded in deliberations over your case.
NINETEENTH: The verdict. High tension time. If you win, the defense may appeal the decision, which could cost you another year or more before you see any money. Appeals, cost of litigation, strong or weak witnesses, problems with shared fault, or insurance coverage disputes are some of the hundreds of things that can affect the value of your case. For this reason, it is important to select a lawyer in whom you have confidence. You must be prepared to trust your lawyer’s judgment on settlement. Remember, your lawyer gets paid more if you get paid more. He/she gets nothing if you get nothing. You must have a relationship of trust so that you will work together at that crucial moment of truth.
TWENTIETH: Never, never display disagreement or disapproval of your lawyer in public. If the defense senses dissension between you, it can hurt your case. Discuss any issues privately. Be charming, polite and patient at all times during trial. That includes in the parking lot, rest rooms, and halls. Jurors like to pay people they like. That like to be cheap with people they dislike. Remember that when the defense lawyer is trying to get your goat when you testify for the jury.
Be aware that litigation is stressful for the plaintiff as well as the person being sued. Resolve at the outset that it will take some determination to see it through. Resist the temptation to compare your case to others you’ve read or heard about: “My Aunt Betty’s lawyer got her….” The truth is that no two cases are alike at all. If you are reading this as if it were a guide on how to handle your own case, don’t do it. Any wrongful death case probably will be VIGOROUSLY fought no matter what the evidence. You need an experienced lawyer’s help.