Victims may hold the victim responsible for their injuries in court. They can also receive damages in a California Wrongful Death case.
A personal injury lawsuit could not survive the death of the victim under common law. The person responsible can be sued if the victim survives. The defendant was not able to sue the victim if the victim died.
Fortunately, California recognizes wrongful death lawsuits. These lawsuits can be brought by family members against the person who caused the death of their loved one. Continue reading to learn about California’s wrongful death laws.
1. First, identify the party responsible for the death
A wrongful death under California law is one that results from the negligence or intentional act of another. Many wrongful death lawsuits can be brought in practice.
- Car accidents
- Truck accident
- Motorbike accidents
- Motor vehicle collisions with pedestrians
- Use of defective products
- Toxic chemicals
- Crimes such as assault and murder
2. Find out if you can bring a wrongful death lawsuit
California’s statute allows only certain relatives to file a wrongful-death lawsuit if a victim is killed due to the fault of another.
- A spouse or domestic partner who is a surviving spouse.
- Children of the deceased who are still living
- Only certain family members, usually parents or siblings, can file a lawsuit if there is no spouse/partner or child living.
California law allows for other individuals to file a wrongful-death lawsuit if they are financially dependent on the deceased. These are:
- Step-children of the deceased
- The “putative” spouse of the deceased, as well as the children that the deceased had with this spouse
- The parents of the deceased
Family members of grieving relatives are not expected to be able to decide if they can sue. If you are unsure whether or not you can bring a lawsuit, consult an experienced attorney.
3. HIRE A CALIFORNIA WRONGFUL DEATH ATTORNEY
Wrongful Death lawsuits can be extremely complex and should not be handled by grieving relatives alone. Hiring a qualified California lawyer will allow you to concentrate on your family and let a lawyer do the heavy lifting.
4. INVESTIGATE THE DEATH & ACCIDENT
A jury will not believe your loved one died because of insufficient evidence. If your loved one was killed in a car accident, evidence will be needed to show that the driver was negligent. It is not sufficient to just prove that your loved one was killed.
The first step in a case is to review the facts as they are. This often means:
- If a police report was filed, reading it
- Talking to witnesses
- The coroner’s report and medical records are available for review
- Analyzing the damage to a vehicle if a loved person has died in an accident.
California law does not prohibit a victim from bringing a wrongful-death lawsuit. However, it may reduce the amount of compensation that her family can receive. If the victim was 50% at fault for the car accident that resulted in her death, the family will receive only half of the compensation they would otherwise be eligible.
5. MAKE A DEMAND TO COMPENSATE THE DEFENDANT
Many defendants or their insurances will settle a dispute before going to trial. It is often beneficial to begin settlement negotiations before you file any lawsuit.
It can be frustrating and time-consuming to negotiate a settlement. Although there is no guarantee that a defendant would settle, we recommend that clients allow them to.
We also demand compensation for any losses that may be incurred, such as:
- Loss or delay in receiving financial support. If your parent dies, you may be able to recover the money they would have given you, depending on the evidence.
- The loss of value for household services. If your spouse dies and you are responsible for all the cooking, cleaning and laundry, you will need to find someone to do these tasks in the future. These costs can be covered by compensation.
- Loss in love and community. These intangible losses, while harder to quantify, are nevertheless very real and often included in wrongful-death settlements or awards.
In certain cases, the estate of the deceased or its closest heir can bring a lawsuit (called a “survival case”) and get compensation.
- All medical bills for the treatment of the death’s final illness and injury
- Punitive damages if the defendant’s conduct was especially culpable
6. PAY ATTENTION – DEADLINES
California doesn’t allow family members to file a wrongful-death lawsuit for an indefinite period of time. Family members have two years to file a wrongful death lawsuit against the state. Instead, the statute of limitations provides them with two years after the decedent’s death. For lawsuits against government entities and other circumstances, the statute of limitations is shorter. Our clients who wait too long will lose any chance of receiving compensation and be held responsible for the death of the defendant.
7. FILE A WRONGFUL Death LAWSUIT
We will file a civil complaint for wrongful death in civil court if the defendant or his insurance refuses to settle. The complaint will include important facts such as the date and hour of death, the cause, and sometimes, the amount of compensation requested.
We serve the copy of the complaint on the defendant. Typically, the defendant has 30 days to respond. Our lawyers may move for default judgment against the defendant if they do not respond to the complaint. This is rare.
8. READ THE REPONSE OF THE DEFENDANT
Usually, a defendant files a reply and sends us one. They will either admit or deny the facts in our complaint.
You might also be able to raise other issues such as the claim that you don’t have a valid cause or that the court doesn’t have the power necessary to hear your case.
9. FACT-FINDING FOR LAWSUITS: ENGAGE IN FACT-FINDING
The discovery phase of most lawsuits is the longest part of any lawsuit. Even though our lawyers can discover some facts before a lawsuit is filed, discovery allows each side the opportunity to present all of their options.
- Request important documents. We will request a copy the defendant’s insurance policy. This will allow us to determine how much money we have to compensate. A “Request for Production” is a request for documents.
- Write to the defendant asking questions. These are known as “interrogatories”. The defendant may also ask our clients questions. They must also answer them under oath.
- Depositions are a time to ask the defendant questions. Depositions are usually held in the office of a lawyer and are recorded. Depositions are useful for obtaining additional
- Information and allow for follow up questions. Deposition testimony may be admissible at trial in certain situations.
Discovery can be a lengthy process and is often the most difficult phase in a wrongful-death lawsuit. However, discovery should end with both parties understanding the facts “inside out”, which will ensure that there are no surprises in the event of a dispute going to trial.
10. ATTEND MANDATORY MODERATORY MEDIATION
California courts attempt to settle disputes without resorting to trials. Your judge may ask you to attend a settlement conference that is overseen by retired judges or lawyers who are acting as mediators. Mediation is intended to bring the parties together so they can find common ground in settling the wrongful death case. Once they have reached an agreement, the parties will draft a settlement agreement that they will submit to the judge.
11. ATTEND THE WRONGFUL LAWSUIT TIAL
We are ready to take our clients to court if mediation or settlement fails. Although they can take up to a week to complete, jury trials sometimes take longer, particularly if the case involves a large or complex case.
In a trial, each side can present witnesses and cross-examine other sides’ witnesses. The jury is allowed to retire from the trial and continue deliberating after the conclusion. California civil trials do not require unanimous juries. Instead, 9 out of 12 jurors must agree that the defendant is responsible for wrongful death.
If our client wins, the defendant may appeal. However, there are protections as the appeal progresses through the courts. Sometimes, cases involving wrongful death are settled at this stage.
12. DISBURSEMENT OF FUNDS
After deducting the agreed contingency fees, we will disburse funds to our client if we win the case. We typically disburse funds within 30 working days after settlement or payment of the jury verdict. All expenses are accounted for by us.
Summarized from an article by GJEL Accident Attorneys.
