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The Wrongful Death Case Process

Wrongful Death Process

The Wrongful Death Case ProcessOne of the first steps in the handling of a potential wrongful death case in New York is to confirm that there has been a death caused by wrongful conduct. There must be survival by distributees who have suffered pecuniary loss, which means that if none of the decedent’s survivors relied on them for financial support in some way, then there would be no viable wrongful death claim. The pain and suffering damages, funeral and burial costs, and medical expenses speak for themselves; but it is obtaining the proof of loss of earnings and loss of financial support that is necessary and requires a lot of work.

Identifying the Defendant(s)

Identifying the defendant(s) in a wrongful death case depends on the facts and nature of the case. For instance, the defendant could be the driver and/or vehicle owner who caused a fatal automobile crash, or a property owner who fails to maintain his property in a safe and reasonable manner, or a general contractor who failed to provide the required safety equipment causing a fatal work-related incident. In a medical negligence case, any and all of the responsible parties can be sued. Had the injured party not passed away, whomever they could have sued for malpractice can be held liable.

Finding Evidence of Damages

Under the statute that dictates wrongful death recovery, the award of damages to the distributees of the decedent’s estate is limited to fair and just compensation for pecuniary injuries resulting from the deceased’s death. Proving the right to compensation in this regard requires evidence of loss of support, voluntary assistance, possible inheritance, the cost of medical care, and funeral expenses.

If the deceased were a minor, bringing a wrongful death claim would require evidence of pecuniary or monetary loss to that minor’s parents, which can be difficult to find. However, some situations involving a deceased minor do warrant wrongful death recovery. For example, in a wrongful death case involving a 16-year-old, my firm was able to show that prior to his death, the 16-year-old had been working part-time to help support his family; the deceased was from a first-generation immigrant family wherein all the members contributed to the financial needs of the household, so there was a monetary component to the claim.

To Litigate, or Not to Litigate

Deciding whether to go to trial or accept a settlement offer can be an extremely challenging part of the wrongful death case process, and involves many considerations. Sometimes a defendant will refuse to make a reasonable settlement offer. In that case, the client is left with no choice but to have a jury decide their case.

In general, trial is the last resort; clients have to understand that jury deliberations are not an exact science, and juries sometimes arrive at even the most unexpected conclusions. For this reason, heading to trial can mean heading into the great unknown. Many cases settle because few people want to take on that risk. That being said, your chances of success at trial will ultimately hinge upon your attorney’s preparation and experience. I am a firm believer that there is no substitute for preparation. Even the most skilled courtroom lawyer will lose his case without meticulous preparation.  He or she must not only be familiar with all aspects of the case, but also of the venue where the case will be heard, i.e., the potential make-up of the jury pool, experience in the community, and knowledge of community feel about the type of case you will be presenting. They should be familiar with the judges and well versed in the particular courthouse rules and customs.  Make sure you find out how many cases the lawyer has tried in that venue. Retaining a highly-skilled, experienced attorney is no guarantee of success, but it will certainly put you in the best possible position to succeed at trial or achieve an excellent settlement.

Should a client decide to pursue a trial and jury verdict, they must be thoroughly prepared to testify and fully informed and aware of all of the evidence and arguments on both sides. Preparing for trial is in itself a process that helps put the client in a better position to settle the case. The defense attorney will see that the client is willing to go to trial and the attorney is prepared and capable of presenting a strong case at trial, which often compels defense counsel to offer a fair settlement.

Factors for Consideration

One of the main factors to consider when deciding whether to take a case to trial is the strength of the evidence that has been obtained via the discovery process including the sworn deposition testimony of all parties. An honest and proper evaluation of the strengths and weaknesses of the case must be made at all stages of the litigation.

The second factor is whether an offer to settle has been made. The attorney is under an obligation to inform the client of any offer of settlement made by the defendant. This must prompt a thorough discussion between attorney and client about the “risk and reward” of rejecting the offer and proceeding to trial.  If the defendant fails to make an offer or makes a “lowball” or extremely unreasonable offer under the circumstances, the client may have no choice but to go to trial. However, if a fair and reasonable offer is obtained before trial, the client will avoid the risk, time, expense, and stress that comes along with a jury trial.

That being said, the choice between a settlement or jury verdict is ultimately the clients to make; it is the attorney’s job to provide a recommendation based on the facts, the evidence, and in his or her experience, what is ultimately in the best interest of the client. The attorney must take the time to ensure that the client understands the reasons for that recommendation.

Discussions about a settlement versus a verdict at trial should happen throughout the course of a case, but even more so toward the end of a case when all of the evidence has been gathered and evaluated. Essential to this decision-making process between attorney and client is trust; the client must be able to trust their attorney’s advice and recommendations.  On the other hand, the attorney must be able to trust that the client is and has been truthful and will be cooperative in the preparation of the case.

Preparing for Trial: What Clients Should Expect

It is important for attorneys to give their clients an idea of what to expect during the pre-trial and trial phase of a wrongful death case. Make no mistake-the trial is no place for surprises, for both the client and attorney.

  • A Telling of Their Story

During the course of the case, clients should expect to provide sworn testimony at a deposition (also called an Examination Before Trial or EBT). The client or witness will be asked questions under oath about the occurrence and the specifics of the damages claimed.  This takes place outside of court, usually in the lawyer’s conference room. During the deposition, the client will be asked questions by opposing counsel, the answers to which will be recorded by a court reporter. The questions will pertain to the relationship they had with the decedent, and the damages they have sustained as a result of his or her death.

Most clients are not only willing to provide this testimony, but eager to do so, because it gives them a chance to tell their story to the defense lawyer—the story about the person the deceased was, the value they added to their life, and what they have endured since their death. During the deposition process clients essentially relive the experience, which can be emotionally difficult, but it is also an opportunity to relay the weight of their loss.

Whether it is a client who was injured in a negligence or malpractice case, family members, or the personal representative of the deceased in a wrongful death case, giving sworn deposition testimony will most likely be necessary.

  • Frequent Attorney-Client Communication

Throughout the trial preparation phase—and especially during the exchange of discovery with the defendant—clients should expect to be in frequent contact with their attorney and kept abreast of the case status at all times. They should also expect to meet with their attorney several times in order to prepare for the giving of testimony at deposition or if necessary, in front of a jury (this can be a challenge for some clients, while others view it as a welcome opportunity to tell the jury about their loss).

Depending on the type and venue where the case is pending, it can take years from the initial filing to the time of settlement or trial, so the attorney needs to be made aware of any changes that have occurred in the client’s medical condition, family dynamics or employment situation.

The client should expect frequent contact with their attorney and they should feel comfortable reaching out to the attorney at any time to discuss the status and progress of their case.


For more information on Wrongful Death Case Process In New York, an initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (646) 828 1980, call Oddo & Babat, P.C. today.

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