3 Things To Consider Before You File A Wrongful Death Claim

Wrongful death lawsuits are sometimes the only way that a family can get any kind of justice for the death of a loved one -- they can succeed even when there isn't enough evidence available for a trial in criminal court.

Should you file a wrongful death claim if a close relative was killed in an accident even if the police haven't brought charges? Here's what you need to consider:

1. The Legal Standard

The reason that a civil case for wrongful death can be successful when a criminal case is stalled -- or even falls flat -- is that the standard of evidence required to prove a wrongful death is vastly different than the proof required for a criminal conviction for any sort of murder -- including vehicular homicide.

Criminal trials require jurors to come to an agreement that the evidence proves "beyond a reasonable doubt" that the accused is guilty of the victim's death. That's the highest legal standard in existence.

Civil lawsuits, which is what wrongful death cases are, only require a jury to determine that the defendant "more likely than not" killed the defendant. That means that the jury only has to be 51% convinced that the defendant is guilty in order to find in favor of the plaintiff. The standard is so light because the only penalty the defendant faces is a financial one -- and that's often covered by insurance, especially in cases where distracted or inebriated driving was involved.

2. The Financial Fallout

Finances are, unfortunately, a very real consideration before you bring any sort of civil lawsuit against anyone else. Fortunately for those seeking justice through a wrongful death claim, those are considered a type of personal injury case -- and most personal injury attorneys work on a contingency fee basis. 

If you hire an attorney on a contingency fee, that means that the attorney agrees to take the case without advance payment for his or her work because he or she believes that the available evidence is strong enough to win in court. Once you settle the case, the attorney collects his or her fee out of the proceeds according to your fee agreement. If the case doesn't succeed, you won't owe the attorney anything. 

However, there's one very practical drawback to personal injury suits and contingency fees -- there has to be some source of money for the attorney to go after in order to make the case worth the financial cost to the attorney. If the defendant was a drunk or distracted driver with insurance, a homeowner, or someone with a lot of wealth, that gives the attorney a source of money to go after -- otherwise, a wrongful death claim may not be financially worth pursuing even if it is a clear winner. You can always pay an attorney to pursue the case anyhow through another type of fee agreement, but that could be very expensive. 

3. The Criminal Case

One last thing families of wrongful death victims want to consider is the potential fallout that can happen to the criminal case if they proceed too soon with the civil lawsuit. It is always wise to discuss the idea of pressing a wrongful death case in court with the prosecutor or detectives pursuing justice on your relative's behalf before proceeding.

In many cases, wrongful death cases move forward because the criminal case is hopelessly stalled. In that situation, the prosecutor may actually welcome the civil case -- sometimes, depositions can help shake loose new information that's helpful to both the criminal and civil case.

On occasion, however, the prosecutor might ask a family to hold off filing a wrongful death claim in order to give the police more time to get through an investigation. For example, they may need time to finish an accident reconstruction evaluation. However, before you agree to wait, make certain that doing so won't cause you to exceed the statute of limitations, or time limit, to file a wrongful death claim in your state.

For more specific information, talk to a wrongful death law office like Wells and McElwee