However, rest assured that the defendant corporation and/or its insurance company will move quickly to hire, investigators, wrongful death lawyers and insurance adjusters to protect their interest.  Unfortunately, many grieving spouses and family members “go to battle” without a professional wrongful death attorney of their own.

Wrongful Death Actions Arise From A Variety Of Accidents

While a wrongful death action can arise from a variety of causes, the most common causes of a wrongful death include:

1. Automobile accidents
2. Medical malpractice
3. Defective products and drugs
4. Construction and workplace accidents
5. Maritime and longshore/harborworker accidents

In each of these cases if it can be a shown by the applicable standard of evidence (see below) that a defendant acted with negligence, recklessness, a complete disregard for the victim’s safety, or with intent to harm or kill the victim, the death is deemed to be an actionable wrongful death. Let’s take a look , in more detail, at the most common kinds of wrongful death accidents

Motor Vehicle Accidents. Motorists have an obligation to exercise caution while operating motor vehicles and drive safely according to the conditions while being mindful of other motorist, adverse weather conditions and pedestrians. 

Medical Malpractice. If a medical practitioner fails to perform his or her duties to the accepted standard of care, thereby causing death to a patient; then, the doctor or medical practitioner can be held accountable.

Defective Products Or Drugs (“Product Liability”). Manufacturers, distributors, and designers must ensure that their products are safe for the public. If a product is defective in terms of its design, manufacturing, or customers are not made aware of a potentially harmful risk; then they can be held liable if a person is killed as a result, even if the parties were not negligent.

Construction Or Workplace Accidents. Employers have a legal obligation to meet OSHA standards, as well as additional safety standards under state law and generally provide a safe work environment for their employees.  If an employee is killed on a work site as a result of an employer or contractor’s  negligent actions or disregard for employee safety, the surviving spouse and/or family members can bring a wrongful death lawsuit against the responsible parties.

Maritime And Longshore/Harborworker Accidents. Persons employed as sailors aboard ships, as well as those who load and unload cargo carried on ships, have enjoyed special protection under two federal laws:  The Jones Act (sailors and seamen) and the Longshore and Harborworkers Act.  Where seamen or stevedores are killed while on the job, the family has the ability to bring a wrongful death action under these statutes.

As you can see, there are a number of way that a victim can lose his life while driving, being treated for medical conditions, or on the job.  Each of these areas of law require the expertise of a wrongful death attorney.  You can bet the defendant will employ some of the best investigatory and legal talent that it can afford.  Let’s take a look at why you need to hire a professional wrongful death attorney of your own.

As you are beginning to see, a wrongful death action is much more complicated than a “fender bender” automobile action of a “dog bite” case involving neighbors.

When someone dies, the stakes are high and the liability exposure of the defendants can be in the millions or billions of dollars.

In simple terms, negotiating, litigating or settling a wrongful death action is not a “do it yourself project.”

Let’s see why.

Fight Unfair Insurance Company Tactics

Make no mistake, in a wrongful death action, that insurance adjuster or lawyer with a “toothy grin” and “aw shucks” attitude is not there to help you.  He is there to make sure that:

1. He locks in your statement early before additional damages have a chance to manifest themselves and you change your story later to reflect these new facts.
2. He settles your claim early and quickly while you are emotionally vulnerable and uncertain about your future; and, before you have a chance to retain wrongful death legal counsel.
3. If he cannot settle your claim early, then he will drag it out as long as he can in the hopes that you will miss the statute of limitations, waive some other important legal right or just get tired and take the offer.

I have practiced both insurance defense and plaintiff’s personal injury law.  In every case, this was the standard defense playbook.

No exceptions.  Period.

Families who choose not to hire a personal injury attorney had no chance of being treated fairly by the defendants and their insurance companies.  The settlements we obtained were far in excess of what was offered to these victims before retaining our wrongful death law firm.

Determine Who Can File A Wrongful Death Action

To the layperson, the surviving spouse and her children seem to be the logical persons to file the wrongful death cause of action.  In fact, in most states this is not the case.  In fact, the unrepresented person would be surprised to know who can file a wrongful death claim in many states.  Potential plaintiffs range from step children, dependant adult children and non-children, employers (if not involved in the death), former spouses, adult siblings, parents of adult children, and, in some cases, grandparents as well.

The family that fails to seek competent wrongful death legal counsel has no way of determining whether or not everyone with a right to recover has been joined as a party.  The net effect is that the defendants will avoid paying all of those affected or worse; additional parties could intervene at the last minute, thereby substantially decreasing each party’s portion of the recovered money.

Recover All Types Of Types Of Damages

Here is an overview of the most common types of damages:

Compensatory Damages. These are intended to repay a victim’s family for the costs of medical care, funeral and burial and other expenses they had to incur as the direct result of the wrongful death. They may also be awarded to replace lost income the victim (and his dependents) would have enjoyed if they had lived. Depending on the age of the victim and his or her income level, the income can be projected out for decades.  On the other hand, families have also been awarded damages for an individual’s housekeeping and for child-care services and loss of companionship.

Punitive Or Exemplary Damages. A victim may recover punitive damages to punish the defendant where it is determined that its acts were intentional reckless or even grossly negligent.  They are awarded in addition to compensatory damages.  Even though juries can award whatever amount of punitive damages they feel are appropriate, judges have the power to review and reduce (or increase) the jury award (called “remittitur”) or set it aside altogether.  In some states, exemplary damages have been limited by statute.

Purchase Structured Settlements. A wrongful death attorney can advise you when to purchase structured settlement payments to provide for the long term financial support of minor children, widows, incompetent persons or those with long term special medical needs.

Gather Hidden Evidence In A Wrongful Death Claim

A party who files a wrongful death lawsuit seeking financial damages from the responsible party must gather evidence from a variety of sources to prove their case and win in court.  Successful parties must prove, usually by a “preponderance of the evidence,” that the responsible party had a duty to act in a certain way, failed to act according to that duty, and in doing so, injured another party, causing damages.

Preponderance of the Evidence. In wrongful death lawsuits and most civil cases, the plaintiff must prove that the defendant is responsible for the plaintiff’s injury by a “preponderance of the evidence,” which means that it is “more likely than not” that the defendant’s actions were responsible for the victim’s injuries. It has been described as a 51% proof of liability standard.   This is a much lower burden than in a criminal case where the burden is “beyond a reasonable doubt.”

Evidence In A Wrongful Death Claim. In most wrongful death cases, evidence comes from witnesses, documentary evidence (police reports, medical records, etc.) and expert testimony.  In some cases it comes from unlikely sources, such as internal company correspondence and memorandums, employee notes, emails, texts, phone calls, surveillance video, neighbors, and other hard to find sources.  Experienced wrongful death attorneys have the expertise and resources to thoroughly investigate all of these leads and more.

Avoid Missing The Statute Of Limitations

Even though statutes of limitation vary from state to state, the general rule is that the statute of limitation runs two years from the date of death, or in some cases, the date of the injury or accident (if the victim does not die immediately).  In other states, the statute of limitation is as short as one year.

Unfortunately, once an unscrupulous defense attorney or insurance adjuster determines that you are not going to settle the wrongful death claim quickly for pennies on the dollar, their focus shifts to dragging the investigation out for as long as possible.  This is an effort to (1) cause you to miss the statute of limitations; and, (2) wear you down so that you will take the meager settlement and walk away.

In either case, finding and hiring experienced wrongful death lawyers will avoid this potentially devastating but simple mistake.

Conclusion:  Your Wrongful Death Action Is Much To Important To Handle Yourself

Lawyers have a saying amongst themselves in the legal industry.

A lawyer who represents himself has a fool for a client.

Now, if lawyers know not to represent themselves, how much more important is it that laypersons take that advice as well.

If you suspect that you have a valid wrongful death claim, it is important that you speak to a qualified wrongful death attorney for a case review.

Between unscrupulous insurance adjuster tactics, loss or destruction of critical evidence and statute of limitations that vary by state, you simply cannot take a chance of mishandling a serious legal claim on this magnitude.

Indeed, waiting too long to consult with an attorney can prevent you from ever getting into to court to fight for financial compensation for your family’s medical bills, pain and suffering, loss of companionship and other damages.

Contact an experienced wrongful death attorney today to discuss your legal rights.

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I formerly practiced both plaintiff’s personal injury law and insurance defense law.  So, I can tell you exactly how an insurance carrier thinks about handling your claim because I have seen the tactics of insurance companies myself.Be

Prepared For Common Insurance Practices And Tactics

You may have never dealt with an insurance company in your life (other than to pay your premiums).

Now that you have been in an accident, you are dealing with an insurance adjuster that wants to settle your claim.  Now, even if the adjuster has the best of intentions, he will still be required to gather and aggregate a lot of information in order to justify the settlement recommendation to the insurance carrier.  At worst, he may use common tactics to delay and confuse you to the point that you just want to settle the claim and walk away.

For instance, the insurance adjuster will likely demand that you do all sorts of things, have examinations, and tests before he will authorize the payment of your medical bills.  You will be required to fill out a lot of forms, see certain doctors and have your automobile or other property inspected by the adjuster (if it was involved in the accident).  They may also want to conduct a recorded telephone interview or have you give a transcribed statement.

This exhaustive investigative process serves two purposes.  Legitimately, the company needs to be able to document your injuries and monetary loss to substantiate a settlement recommendation to the company.  The illegitimate purpose is to “lock in” your statement in an effort to minimize your damages and disclaim future damages that may not be obvious early on after the accident.  At worst, it could be an attempt to manipulate you into making a statement of liability or one that mitigates the responsibility of the party represented by the insurance company.

And after doing all that you’ve been told to do, the insurance company may still not be willing to pay for all your bills and properly compensate you.  Or they may offer an immediate check that sounds tempting at first, but might not be in your best interest if you have lingering injuries.

Retain A Personal Injury Attorney:  When Do I Need To Find A Lawyer?

For relatively minor injuries, that’s probably not necessary to retain a personal injury lawyer.  But, many lawyers will advise you to retain legal counsel whenever you are asked to give a statement (of any kind0 by an insurance company.

Personally, if the damages involve minor property damage to your car, you probably do not need to initially retain a lawyer unless you feel that the insurance company is not dealing with you in good faith.  However, if you have personal injury, I would seriously recommend retaining a qualified personal injury lawyer before giving a statement of any kind.

So, because of the nature of the injuries to you; or, because the insurance company is not dealing with you in good faith, you have decided to retain a personal injury attorney.

How Do I Choose A Qualified Personal Injury Attorney?

First of all, do not retain one of the personal injury attorneys that advertise heavily on television and radio.  These lawyers are typically not held in high regard by other lawyers.  Sometimes, these types of firms seem to mostly be ready to settle your case, not litigate it.  At worst, many of these firms have no intention of ultimately representing you.  Their business model involves signing you up and referring you out to another firm while taking a referral fee for their efforts.

Now, I will admit that there are some exceptions to the rule stated above.  But, as a rule, I would not recommend it.  You need to interview several firms to determine which one is right for you.

Personal Referrals

I believe that a personal referral is better than any television advertisement.  Talk to friends, family and neighbors to see if they have used a personal injury lawyer themselves or know of someone who has done so.  Take down the names and focus on those that have come up more than once.  Although the primary question you will want to ask is the amount of the settlement, the friend cannot legally disclose this to you if the case was settled without a trial.  The information is suspect anyway because people typically exaggerate their results.

Better questions would consist of inquiries like:

• Does the attorney return phone calls?
• How often did you get status reports?
• How long were you prepped for depositions or other court appearances
• Did you understand the process thoroughly
• Did your personal injury attorney answer all of your questions?

Law Firm Websites

When reviewing a law firm website, take what you read with a bit of skepticism.  The site was, in fact, made by the lawyer or law firm with an eye toward generating business referrals.  Many firms will have news articles detailing large verdicts and other positive press regarding the personal injury lawyer or his firm.

Google, Yahoo and Bing!

Type the name of the law firm or personal injury attorney into the search engine and see what comes up.  Is the lawyer active in his community?  Has he had any negative press?  Is he currently running for public office?  All of these factors should be weighed to determine if he has the will and ability to devote adequate resources to your claim.

State Bar Website

To my knowledge, every state has a State Bar website where you can go and find important information about lawyers licensed to practice in that state.

You often see the suggestion to call the local or state bar association.  Usually, I would say do not bother.  Bar associations are regulatory agencies.  They cannot recommend the best attorney for a particular type of case.  At best, they provide list of lawyers licensed in their state and whether they have been disciplined or not.

Personal Injury Lawyer Rating Websites

Many online services exist that rate lawyers.  Some examples of these are Avvo, LawyerRatingz and uReview.net.  A traditionally respected resource among lawyers is the Martindale Hubbell legal directory which can now be found online at martindale.com.  However those listings do not have ratings, but they do have a biography of the lawyer that includes his educational background, specializations, and legal writings.

Yellow Pages

The Yellow Pages is certainly a source of attorney information.  However, this method shares the same cautions as with television advertising.  Do not assume that the bigger the ad, the better the personal injury lawyer.  Often the same lawyers appearing on TV and the radio all the time are the same lawyers with the big yellow page ads.

Remember, your primary goal is to find lawyers with lots of experience in handling your type of case – whether it is an auto accident, a workplace injury, medical malpractice, a slip and fall or any other type of injury.

I Have A List Of Candidates.  How Do I Make My Selection?

Call each personal injury lawyer on your list of choices and schedule an appointment with them.  The initial consultation should be free.  This serves as your opportunity to interview the lawyer to determine if you are going to hire him to represent you.  Factors that should weigh in your decision include the following.

Big Firm Or Solo Practitioner?

Does she have an office or practice out of her home?  Is the firm so large it takes up an entire building?  Some clients want a small firm with informality while others want a firm with an army of lawyers that can be available to review and consult on the case.  But, the most important factor, in my opinion, is how you are treated by your attorney’s staff.  This is a reflection upon how he, or his firm, run their business.

Personal Injury Experience?

Find out how much experience he or she has in cases like yours.  What percentage of her practice is devoted to personal injury claims.  If the answer is less than 50%, you should probably keep looking.  Personal injury is a specialized practice, despite what you see on television.  The personal injury attorney has to be part doctor, part accountant, part financial consultant, and part therapist.  Not everyone is qualified to do that.

Trial Experience?

How many trials has your attorney participated in?  How many trials has your personal injury attorney been lead counsel?  You also want a lawyer with a certain amount of trial experience.  Anyone can settle a personal injury claim, but without any trial experience, the personal injury attorney will not have much leverage with the insurance company or their attorneys.  Furthermore, if the case goes to trial, you want to know that the personal injury lawyer can perform in front of a jury.  There are very few lawyers who are excellent litigators.

Specialization Certification?

Many states offer Board Certification in certain specializations.  Certainly, an attorney that is Board Certified is usually going to be a competent personal injury attorney.  After all, to get the Certification, he must pass a difficult test, have a certain amount of trial experience, and other stringent requirements.  However, most of the best personal injury attorneys that I have had occasion to work with have not been board certified.  So, Board Certification is certainly a positive in favor of an attorney.  But, I do not think that you should penalize an attorney for failing to be Board Certified.

Fee Structure?

Lawyers generally handle personal injury cases on a contingency fee basis.  The personal injury lawyer pays all the major fees associated with the case and then collects those expenses plus a fee based upon a percentage (typically 33-45%) of the net proceeds after expenses are deducted.  Contingency fee contracts are required to be in writing and signed by both you and your lawyer.  If the attorney you speak with isn’t willing to do this, leave immediately.

Note that, in some instances, the personal injury attorney will determine that your case is of marginal value.  As such, he may offer to take the case if you post a retainer that will be used to pay some of the expenses of the case.  The balance of expenses and fees will be paid if the case settles or you win at trial.

The lawyer wants to determine if you have enough confidence in the marginal case to “invest” some of your own money into it.  If this offer is made to you, use it as a basis to negotiate a lower contingency fee.  After all, part of the reason for setting the fee so high is that the lawyer is assuming all of the risk.  Where you share in the risk, you should receive a greater share of the proceeds.

What If I Become Dissatisfied With My Personal Injury Attorney?

Many people grow to hate their personal injury lawyer.  I am not surprised.

After all, personal injury litigation is emotionally taxing and mentally exhausting.  In each case, I tell them that they need to find a new lawyer.  The United States is full of lawyers of all shapes, sizes and personalities.  Somewhere out there is a personal injury lawyer that is a good fir for your personality.

You do not need to put up with substandard service from your attorney.  If your attorney will not return your reasonable calls (note:  calling everyday to “check on the case” is not a reasonable call), or if he will not answer legitimate questions or provide status reports at regular intervals, then fire him.  Find someone else that suits you.

On the other hand, keep in mind that your case moves forward very slowly.  You may go for months without any legitimate action on your case.  The lawyer may not immediately return your phone call because there is nothing new to report.  I often sent monthly status reports to clients, even if there was nothing to report.  They appreciated it.

Hiring the right lawyer is a decision that will have a profound impact on your case.  Take your time and choose wisely.  If you do, you should be able to minimize the pain associated with this emotionally trying ordeal.

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