The Nature of A Wrongful Death Lawsuit

Filing a wrongful death lawsuit is a difficult thing if for no other reason that you are doing so because you lost someone close to you. While making those responsible pay is definitely on the 'to do' list, doing so will never bring them back to you. The actual process of wrongful death lawsuit can make this all the more frustrating.

A wrongful death lawsuit is a civil action, not a criminal one. This simply means that a finding of responsibility against the defendant will result in the award of monetary damages, not jail time for the defendant. The classic example was the OJ Simpson murder case. He was found innocent in the criminal case, but liable in the wrongful death case for over $30 million dollars in damages.

The practical process of a wrongful death lawsuit depends on the underlying claim. A case based on an assault works a bit different than one based on gross medical negligence, for instance. Regardless, there are general common components. They include the retaining of a lawyer who will do a workup prior to filing the lawsuit. This will include reviewing the evidence, nailing down witnesses and so on.

Once you are ready to go, the lawsuit will actually be filed and served upon the defendant or defendants. They defendants will then have a period of time, usually 30 days, to contest how the complaint is written and whether such claims can be made as a matter of law. Should the defendant prevail in any of these arguments, your lawyer is usually given the opportunity to 'amend' the complaint and re-file it.

At this point, we move to the discovery phase of the case. During this period, the parties may each request documents, written answers to questions and testimony from the other parties. You've heard of the defendant's right not to testify? Well, it only exists in criminal cases, not civil like yours. As a result, he or she can be forced to testify in something called a deposition.

Once the evidence is gathered, two things will occur. The plaintiff will file a 'Motion for Summary Judgment' with the court arguing that the evidence does not support the various causes of action you've made in your complaint. If the judge agrees, he or she will strike those claims from the lawsuit. This can greatly dent or even end your lawsuit.

Assuming you make it past the motion for summary judgment, the parties will often be sent to a mandatory settlement conference. In this conference, both parties are instructed to tell an impartial third party, usually a retired judge, why they will prevail and what they are willing to settle for. The retired judge will, in turn, enlighten both sides to the weakness of their claims and try to strike a deal.