Posts made in February 2016

Wrongful death cases are about making someone whole, not a backup to the criminal courts.

Wrongful death cases aren’t about revenge

Wrongful Death Cases and Revenge

There’s a misconception among a lot of adults today that the civil court system is a good back-up plan to punish a person who could not be convicted in the criminal court system. The idea is if they believe someone has committed a crime but was found Not Guilty or the case was thrown out, the victim’s family can always get a civil trial and try to sue the person.

That’s usually not a good legal strategy and that’s not what the civil courts are for. Generally speaking, wrongful death cases are about accidents, not murders.

Part of what spread this idea was the OJ Simpson murder trial that took place in 1994 and 1995. After Simpson was found Not Guilty, the families of the deceased pursued a wrongful death suit in 1997, which they won.

What many people don’t understand is that those two verdicts could both be consistent with the same pool of evidence. That’s because the burden of proof for criminal cases is higher than in civil cases. For the criminal case, where Simpson was found Not Guilty, the jury was required to have evidence “beyond a reasonable doubt” to return a guilty verdict and they didn’t feel that standard was met. For the civil case, the requirement was much lower, “a preponderance of evidence.” That is, was it more likely than not that he did was he is accused of. Simpson was judged to be guilty and sentenced to pay $33.5 million.

In 2014 the lawyer for the plaintiff said Simpson has paid less than 1 percent of the settlement after 17 year. While Simpson was worth an estimated $11 million in 1994, all of that money was gone, most of it spent on legal fees. While personal injury firms like Colucci, Colluci Marcus & Flavin work on contingency and only bill clients if they win, Simpson’s defense team had to be paid either way. Efforts to collect money from Simpson have been largely unsuccessful.

If that’s what happened when someone won a wrongful death suit against a rich celebrity, imagine trying to collect from a member of the general public. Most murderers don’t have a lot of assets to draw from, and it doesn’t matter if they had insurance.

Insurance is for accidents. If someone commits a murder, that’s not an accident and no insurance policy covers intentional murders committed by the policy holder. That doesn’t mean lawful death suits can’t win – they certainly can and do, but most of them aren’t for murder and are more likely to involve accidents that are covered by insurance.

We’re not in the revenge business. You would not get any measure of comfort from hearing that the person who harmed your family is ordered to pay a large dollar amount that will never materialize.

Wrongful death cases include more steps than normal and timetables are tight

Don’t wait on a wrongful death case

A wrongful death case is the most emotionally-trying of the cases we work on. Surviving family members are mourning the loss of a loved ones and in cases where a working spouse of parent is killed, have the added stress of worrying about how they will pay their bills in the future. Comforting young children, planning a funeral and grieving all take a high priority at these times.

Unfortunately, this leads many people to delay talking to legal counsel, and in some cases that causes them to miss important deadlines in the civil court system. For example, only one person can become the “personal representative” who brings forth the claim in a lawsuit on behalf of the deceased, and the courts determine who that person is early in process. That needs to be resolved before any suit can go forward and if you don’t act quickly you may miss other deadlines.

Legally speaking, the courts treat wrongful death cases as personal injury case. Death is considered an injury by the courts. To be able to file a lawsuit for a wrongful death, or any other injury, the defendant must have committed some sort of civil wrong, such as negligence, that lead to the death.

It’s not simply enough for a person to have died on a property owned by someone else; the property owner had to do something wrong, such as fail to maintain the property. For example, if someone were to fall down the stairs at a building, there may not be grounds for a lawsuit to the building owner.

But, if there was a section of carpet at the top of the stairs that was bunched up and caused the person to trip, the hand rail was loose and unable to support the person’s weight, and the property owner had been told about those problems for months but never attempted to fix them, then there’s a strong case that the building owner’s negligence contributed to the person falling down the stairs.

Each case is different and many aren’t this clear cut, but if you or someone you know lost a relative in what could have come from the actions of another person, than you need to act quickly. Your want someone protecting your rights immediately and you can’t do that without an experienced lawyer.

who is defendant in wrongful death cases

Don’t assume who the defendant is in a wrongful death case

Consider this scenario. A young man in an apartment building starts lighting matches for fun and accidentally starts a fire that burns the building down. A woman in another apartment dies and her family pursues a wrongful death lawsuit.

Who is the defendant for that wrongful death lawsuit?

While some people will say it’s the young man, the real answer is that we don’t have enough information to answer the question. There are far too many unknowns to make a determination yet.

It’s easy to consider the young man responsible for the death. On a moral level he is to some degree. However, that’s not the purpose of a wrongful death suit, which is to collect damages for the surviving family members. If that young man has a lot of assets to his name, such as money or an insurance policy, he is worth including in the lawsuit. If he doesn’t, there is little purpose in trying to squeeze money out of him that he doesn’t have.

A competent attorney will investigate the matter further. Why did the fire spread so quickly? Was the building up to code? Were the smoke detectors working? Was the apartment building constructed improperly? Was the building manager warned about faulty safety equipment but never did anything to help?

We investigate to figure out what happened and what factors contributed to the tragedy. Even if the fire was set on purpose and the young man was arrested and prosecuted in the criminal court, the building owner could still be held responsible in a wrongful death case if he acted negligently, such as if it was shown that he allowed the fire escapes to rust up and fall apart.

Sometimes these cases go far down the rabbit hole. If we found out the smoke detector failed to work because of a faulty computer component inside of it, we may end up adding as defendants the smoke detector manufacturer and the company that made the smoke detector’s faulty component.

While moral guilt may belong to the young man, in a wrongful death suit, or any other personal injury suit, we pursue compensation from all negligent parties that contributed to the tragedy by failing to take reasonable precautions that could have protected people.