Losing a loved one is a difficult ordeal especially if it was due to the negligence and/or reckless nature of another person. Often the last thing a family member wants is to go through complex and stressful litigation on behalf of their lost family member. However, understanding the steps that occur along the way can help put your mind at ease and help create a realization that filing a lawsuit may be one of the best decisions you make and go a long way towards preserving the financial aspect of the lifestyle you were previously enjoying.
The steps within the wrongful death claim process include:
- Wrongful Death
- Hiring of an attorney
- Filing of the claim
- Gathering evidence/discovery
- Settlement negotiations
- Court proceedings
Since the deceased is unable to bring a case on their own behalf, a wrongful death claim allows for family members to seek damages against the person or entity that caused the death. To qualify as a plaintiff in a wrongful death claim, the law in Georgia allows the following people to bring a claim on behalf of the deceased:
- The deceased’s spouse
- If the deceased does not have a living spouse, the deceased’s children
- If the deceased does not have a living spouse or children, the deceased’s parents
- If the deceased does not have a living spouse, children or living parents, then the representative of the deceased’s estate may bring suit
Usually the first step in filing a claim for wrongful death is to appoint a personal representative for the deceased’s estate. The second step would be to identify all survivors from the list of people that may bring a claim (above). For a wrongful death claim to have merit, the death must have been caused by the breach of an owed duty by another person.
The word “duty” refers to someone having had a responsibility to do or not do something.
For the duty to have been breached, the defendant must have acted unreasonable and/or recklessly under the circumstances.
Causation needs to be proven in both actual as well as proximate terms.
Actual causation requires that the defendant’s breach of duty be the cause in fact of the death.
Proximate cause refers to how foreseeable a death would be as a result of the action or inaction of the defendant.
Last you must show that the breach of duty caused the damages suffered by the deceased. The law in Georgia allows a family member in a wrongful death action to recover the full value of the life of the deceased, without deducting for personal expenses the deceased person would have had, had they remained living.
Hiring of an Attorney
Outside of deciding to pursue legal remedy for the loss of a loved one, the hiring of an attorney may be the single-most important decision you make during the process.
When you first meet with an attorney, you will be asked questions similar to; how the death happened; the type of medical treatment, if any, the deceased received; if anyone witnessed the death; how the death has financially impacted your life; etc.
Based on the answers to the questions, the attorney will assess whether they are the right counsel for your pursuit of a wrongful death claim.
Filing of the Wrongful Death Claim
Once you have hired an attorney, your case will begin.
First, before initiating a lawsuit, your attorney will likely send a demand letter to the party you believe to be responsible for your loved one’s death. The demand letter is a document that requests a monetary settlement from the responsible party.
If the demand letter is not answered, the next document to be filed will likely be the complaint which outlines your case against the person who was the cause of the death. The document will identify yourself along with other members that may be part of the lawsuit as well as the defendant, the venue for the proceedings, your legal claims, the facts supporting your legal claims, and the type of damages you are seeking.
After the complaint is filed with the court, a summons will be issued. A summons is an order from the court that notifies the defendant that they have been sued and establishes a designated amount of time for when the defendant must answer the already filed complaint which will also be served upon the defendant.
When the defendant responds to your lawsuit, they will do so in the form of a document called an answer. The answer will address each of the claims made in the complaint as well as assert possible defenses or reasons why the defendant is not liable for the damages you have requested.
Gathering of Evidence
Once your lawsuit has been properly filed with the court, your attorney will begin to gather evidence that is relevant to your claim. During this process, your attorney may take the depositions of people involved in the death and who intimately knew the deceased. A deposition is a situation where a person will answer questions posed by your attorney in an informal setting. The given answers will be sworn statements and may be used at trial should your case advance to that stage.
It is possible that your claim will never be heard inside of a courtroom because the defendant will offer you a sum of money to settle the case. In exchange for the sum of money, you would give up your right to pursue further legal action related to the death and the case would cease once the exchange between yourself and the defendant is made.
Before agreeing to a settlement amount, you and your attorney will discuss both the benefits and disadvantages to settling the case, how strong of a case you have and how it would likely fare if it proceeded to the litigation stage, and how the settlement funds would be portioned out between your attorney’s fees as well as your expenses.
It is important to note that your attorney is not authorized to approve of any settlement offer from the defendant without your approval.
If a settlement is not able to be reached, your case will move to the litigation stage. Once in court, both sides will make opening statements.
An opening statement is often detailed in nature and is the first opportunity for the court to hear your side of the story. Your attorney will cover the facts of the death and how the defendant is liable while discussing the process for which your case will be proven.
During the trial, evidence will be presented by both sides usually in the form of documents, pictures, medical documentation and witness testimony.
Finally, after closing arguments, your claims will be evaluated and ultimately the court will need to decide if by the preponderance of the evidence presented whether or not the defendant should be held liable for the death of your loved one. If the court finds the defendant liable, a judgment for damages will be awarded on your behalf