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The Different Phases of a Wrongful Death Claim

Learn about important terms in making a claim for wrongful death

Wrongful Death Claim Phases

There are several different phases in a wrongful death lawsuit. Not all wrongful death claims require the filing of a lawsuit in order to be fully compensated. In fact, in certain cases, an estate is better served by not filing a lawsuit, since it can be expensive and not always a necessary part of recovering the full value of an estate. In short, a lawsuit begins with notice to the responsible party or parties of a claim, and ends either with a trial, arbitration, or a settlement which occurs during one of the phases of a case.

Pre-litigation Phase:

This is the phase at the beginning of a wrongful death lawsuit, when the decedent's personal representative must complete certain important tasks: It includes the following important tasks or decisions.

  1. Set up the estate at the courthouse in the county where the decedent resided. An estate or personal injury attorney can help you with this.
  2. Retain a personal injury attorney who is well regarded for handling wrongful death claims.
  3. Allow the attorney to commence a full investigation into what led to the death of your loved one.
    1. Your attorney should advance the full cost for this investigation and should only be reimbursed if and when they obtain compensation on behalf of the estate.
    2. The sooner you retain your attorney to investigate the circumstances surrounding the loss of your loved one, the fresher the evidence in the claim will be.
  4. Once your attorney has gathered all of the evidence necessary for you to make an informed decision as to which parties to pursue for a financial recovery, the parties must be put on notice of your intentions and insurance information should be obtained.
  5. This is a common phase for negotiating with defendants. If an estate can be fully compensated without having to file a formal lawsuit, this can save the family members from the high cost of litigation and the money will be obtained sooner than if a lawsuit is filed.

Litigation Phase (The "Wrongful Death Lawsuit"):

Often times, the parties are unable to settle a wrongful death lawsuit without suing one or more of the responsible parties. Litigation begins when a party files a lawsuit against one or more parties. This begins when a Complaint or Writ of Summons is filed and served upon all of the defendants in a case. The phrase "law suit" is typically used instead of "litigation."

Litigation includes the following steps in a lawsuit:

  1. Filing of a Complaint or Writ of Summons to commence a litigation or lawsuit. These documents are called "pleadings."
  2. Responding to a Complaint or Writ of Summons
  3. Discovery phase of litigation.
    1. Interrogatories are commonly issued in this phase. These are written questions that each side can ask and the other side must either answer or object to.
    2. Request For Production of Documents are also common in this phase. These are written requests for the opposing side to produce specific documents that are relevant to the incident in question.
    3. Depositions are also common in this phase. In a deposition, any party or witness to a lawsuit may be questioned while under oath by any party in the lawsuit.
  4. Pre-Trial phase of litigation. In this phase, the parties must educate the judge about the case, a jury will be selected, and the judge will often schedule at least one conference with the attorneys. The first conference is intended to set up all of the things that are necessary for the trial of the wrongful death case. Often, judges will attempt to see if they can help the parties settle a case at this conference, or at a subsequent conference, called a "Pre-Trial Settlement Conference."
  5. Trial or Arbitration. This is the phase where the case is presented to a Judge and usually a jury, or an arbitrator, who is frequently a retired lawyer or judge. A final verdict or award is rendered and the case is usually over at that point.
  6. Post-Trail phase. In the event that one or all of the parties to a trial or arbitration wish to appeal or challenge the outcome, this would occur in this phase known as the Post-Trial phase.
  7. Settlement Discussions

    Discussions intended to attempt to resolve a lawsuit can occur at any point in a lawsuit. Some of the most common times to settle a lawsuit are:

    • Pre-litigation phase. Settlement discussions often occur after each side has had an opportunity to investigate what occurred and before a wrongful death Complaint or Writ of Summons is filed.
    • Litigation phase. Often, settlement discussions will occur after depositions in a case are completed. This is typically because both parties have a better idea of what key witnesses will testify, what they will say and how credible they are.
    • Pre-Trial phase. Often, with the encouragement if the assigned judge, settlement negotiations will occur prior to a trial beginning. This is known as a case which is "settled on the courthouse steps."
    • Trial phase. Oddly enough, a surprising number of cases are settled during the trial of a case or sometimes, after the evidence has all been presented and the jury is deliberating over the verdict.

    Conclusion

    Properly investigating and effectively handling a wrongful death lawsuit requires you or your lawyer to navigate many important phases of this type of claim. It is highly recommended that if you lost your loved one and suspect that it was the result of another person's neglect, you owe it to yourself and your family to promptly retain a wrongful death attorney who is very familiar with these phases, and experienced in obtaining successful recoveries for their clients in wrongful death claims.

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