Bagen Law Firm | February 20, 2023 | Personal Injury

If your loved one died in an accident (or at the hands of someone else), you have the potential right to receive financial compensation. First, you must hire an experienced wrongful death attorney to help you take decisive legal action. Your family will need to work before anyone writes a check for the death of your loved one.

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The Phases of a Wrongful Death Case

Every wrongful death claim or lawsuit has two phases:

• In the first phase, you will prove that someone else was to blame for the accident, giving them the legal obligation to compensate you.
• The second phase is the damages phase, and you only reach it once you prove that someone else was to blame. The insurance company or a jury will only begin to potentially try to quantify damages if it believes that there is a responsible party.

Thus, proof is an absolute necessity for financial compensation. However, compiling the necessary proof to win a wrongful death case is challenging for any family. Without an experienced attorney working for you, it may be difficult to gather the evidence you need to receive financial compensation.

Where Your Family Can Go for Financial Compensation

There are two different ways that you can prove what is necessary to win your wrongful death case:

• You can begin with the responsible party’s insurance company by filing a claim. An insurance company will still demand that you include the necessary evidence with your claim for them to make you a settlement offer. Some people start with an insurance company to obtain a quicker settlement.
• You can file a lawsuit in court and allow the jury to decide on the wrongful death case. Remember, you will still be dealing with the insurance company because they will negotiate a settlement and fight against your case in court. Your family can go to court during the process, even after you have filed a claim with the insurance company. You are not bound to continue negotiating with the insurance company, especially when they are acting unreasonably. 

The Elements of a Wrongful Death Case in Florida

Each state has its own wrongful death statute that allows certain family members to file a lawsuit against the responsible party.

In Florida, the elements of a wrongful death lawsuit are:

• A person died
• Death happened due to the wrongful actions of another person, whether it was negligence, recklessness, or intentional actions.
• The family suffered harm from losing their loved one
• The person or persons filing the lawsuit have the legal ability to do so under Florida’s wrongful death law

Proving your case often centers on whether you can prove that the death was wrongful. It is undoubtedly easier to prove your case when the potential defendant acted intentionally or recklessly. It is more challenging to prove that the responsible party’s negligence caused your loved one’s death. Then, you must learn precisely what the other person (or company) did and argue why it fell short of what it should have done.

Although the injury suffered is far worse, a wrongful death case is similar to other personal injury cases. Here, personal injury is the loss suffered by the family when their loved one died because of someone else’s actions.

Proving Negligence in a Wrongful Death Case

With that in mind, negligence is the legal standard in many wrongful death cases. To hold someone else legally responsible for your loved one’s death, you must prove that they acted unreasonably under the circumstances.

Here are the four elements that you will need to meet to prove someone else’s negligence:

• The other party owed your loved one the duty of care. This element is often the easiest to prove. For example, a motorist owes a duty of care to those around them on the road, even if they will never meet them.
• The person breached the duty of care by acting unreasonably under the circumstances. Breaching the duty of care can involve an act or omission. The failure to do something can be as negligent as a mistake. Proving an actual breach of the duty of care is often the most challenging part of a personal injury case.
• Your loved one suffered an injury.
• Your loved one might not have died had it not been for the other party’s actions. You cannot automatically assume that the negligent act caused the death. An insurance company may dispute the causation element by trying to blame your loved one for their own death, meaning that the other party’s actions were not the root cause of the injury.

The Standard of Proof in a Wrongful Death Case

The difficulty in a wrongful death case (as in any personal injury case) is that you have the burden of proof to meet every element of the case before you can be in a position where you can receive financial compensation. In a personal injury case, you must prove your case by a preponderance of the evidence.

There is good news and bad news related to proving your case. The good news is that the preponderance of the evidence is a lower standard than the beyond-a-reasonable doubt standard in a criminal case. A lawyer will tell you that you need to come out on the better side of 50-50 on the spectrum of something being true, as opposed to the nearly 100 percent in a criminal case. Nonetheless, it can still be a challenge to prove your case.

If there is a criminal case stemming from the accident, such as a manslaughter charge from a fatal drunk-driving crash, it can help you prove your civil case. If the defendant is convicted, you can use that to satisfy your burden of proof for wrongful death. Even if they are not convicted, you still have a chance to win on the civil side due to the lower burden of proof.

Helpful Evidence for Your Wrongful Death Case

Here is some evidence that you may use to prove a wrongful death case:

• Testimony from witnesses who saw what happened in an accident
• Records that are in the responsible party’s possession can prove what they did or did not do to prevent the accident
• Testimony from an expert witness who can give their opinion about what happened in the accident
• Pictures of the scene of the accident, either before or directly after it happened.
• Video Camera footage that can show the accident
• The police report written by a law enforcement officer who arrived after the accident happened (this cannot be used directly at trial to prove fault for the accident)

How to Obtain Wrongful Death Evidence in Court

You may not have all the evidence you need at your case’s beginning. Your attorney’s investigation is helpful, but there are limits to what they can do. If crucial evidence is in the responsible party’s hands, they will not simply give it to you because that will ensure they are liable.

You may need to file a lawsuit in court to access much of the evidence you need. Every lawsuit has a process in which the two parties can request information in the other’s hands. In a personal injury case, this process is called discovery.

Discovery Helps You Gather Necessary Evidence

Discovery is the information-gathering stage of litigation, and both sides must follow strict procedural rules.

Here, you will get a chance to make requests of the defendant in a legal case:

• Requests for admissions – Asking a party to admit or deny a specific statement under oath
• Interrogatories – A formal set of questions asking the other party to respond to or clarify certain matters
• Requests for production of documents – The other party may have documents in their possession, such as emails and other records, and you can ask them to provide you with the documents.
• Depositions – You can question a party (or a witness) under oath for up to seven hours to learn what they know and how they may testify at trial.

Discovery can provide helpful evidence to prove someone was responsible for your loved one’s death. Your lawyer can obtain corporate records or other documentation that might otherwise be very difficult to obtain from parties. They can then use this evidence to build their case and prove liability for the wrongful death.

Hurdles You May Need to Overcome in a Wrongful Death Case

Another issue you may run into in a wrongful death case is causation. When a truck driver hits your loved one’s car because they were drunk, the causation is pretty clear. However, it can be less clear in more complicated matters.

For example, if your loved one died after developing cancer from using a medication, the defendant may dispute that their product was the actual cause of your loved one’s death. They may claim that you do not have sufficient proof to show the product’s connection with cancer because the burden of proof is on you to show causation. The same thing goes for a medical malpractice case. The defendant may argue that your loved one will have died anyway, even if the doctor admitted to a mistake.

Your wrongful death lawyer should have the experience and resources necessary to clear such hurdles whenever possible. 

The Insurance Company Will Try to Make Your Family’s Life Difficult

The insurance company may have their own motivations in the case, as they always do.

Given the amount of money on the line in a wrongful death case, the insurance company may take one of two approaches:

• They may take a hard line on admitting liability, making you prove your case in detail because they do not want to write a significant check
• They may try to rush you into a settlement that is for a fraction of what you deserve

Experienced Wrongful Death Attorneys Are on Your Family’s Side

No matter what tactics the insurance company is trying to use, you will always need an experienced attorney to represent your family in a wrongful death case. Your family needs the money this lawsuit can provide, and you cannot take any chances. The insurance company is not trying to do your family any favors. On the contrary, they are doing everything they can to save money at your expense, whether it is by refusing to pay altogether or trying to settle the case for far less than it is worth.

The insurance company may begin its work well before your family is ready to file the case. They do not care that your family is grieving and dealing with a significant loss. The insurance company can begin to pressure your family immediately after your loved one has died.

Hiring an attorney at the first opportunity can preserve and protect your legal rights to financial compensation. Even if your family does not immediately file a lawsuit, your lawyer will still need to do the legwork for the claim, gathering evidence to help prove your case. It always helps to prepare as much as possible ahead of time, improving the chances of winning your case and easing your family’s burden.

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