Filing a wrongful death claim is not simple, nor is it easy to do.
The process and what a potential plaintiff needs to know will depend heavily on the facts in the case, the state where the lawsuit might be filed, and the parties involved.
This webpage isn’t a substitute for seeking out the assistance of qualified attorney, but hopefully we can give you some information you’ll be able to use.
How To File A Wrongful Death Lawsuit (x need to know)
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Number One Thing To Know: When Does The Statute Of Limitations Expire?
One of the easiest ways to completely and totally blow it in a wrongful death case is to miss the deadline to file the wrongful case established by the applicable statute.
Seriously, there’s no do-overs, and no mercy for lack of knowledge, mistake, or even plain stupidity.
You 100% should know for certain the date that the bad act occurred, when the bad act was discovered, and when the wrongful death statute of limitations deadline is.
Why do you need to know when the bad act occurred?
This will tell you when the time clock starts to run, and you can look forward to when the time clock ends.
Why do you need to know when the bad act was discovered?
Sometimes a bad act occurs, but no one realizes that the act was bad until a later date.
Sometimes the discovery occurs after the statute of limitations based upon the act has already expired.
In some jurisdictions (but not all), you can get a little extra time to initiate a wrongful death claim based upon the fact that the bad act wasn’t discovered until it was too late to file.
Why do you need to know when the statute of limitations expires?
Obviously, the statute of limitations is important because it tells you when you need to file.
But this deadline is also important because it tells you when you start needing to look for an attorney to help you.
Attorneys don’t like having to do things last minute.
In fact, if you run to an attorney’s office with a really valuable case just days before the statute of limitations expires, most attorneys will refuse to see you or take your case.
There’s just too much risk that the attorney might do something to miss the deadline, and then make his firm (and his malpractice insurance) liable for the damages resulting from missing the deadline.
You need to know when the statute expires so you can make plans well in advance of the deadline to pursue the case, in whatever fashion you choose.
While the court is not forgiving of the mistake of missing the deadline, if the deadline has not yet passed, the court can be more forgiving about mistakes made in the pleadings and procedure.
Thus, if you make a mistake, you might have a chance to re-file the case or even fix the mistake in the existing case, so long as the statute hasn’t passed.
Will You Have An Attorney Help You?
In general, this is a prudent thing to decide early on in the case.
Many (if not most) wrongful death cases settle before a court case is filed.
Wrongful death cases tend to be extremely costly, for the defendant and for any insurance company involved.
If the plaintiff in a wrongful death case does not retain counsel, the insurance company/defendant might do one of two things to avoid the cost and expense of the case: make low ball settlement offers quickly and early to entice the plaintiff to settle, or deny the demands to settle outright and push the plaintiff to have to file the claim, which he might not be able to do correct.
In general, it is most cost effective for the insurance company if the plaintiff messes up the case and fails to file the claim on time before the statute of limitations expires.
If you are going to have an attorney help you, you don’t have to decide right away, like in the hours or even days after the bad act/wrongful death occurs.
But if you think you will need one, it is worthwhile to explore who you will hire when you are ready and able to do so, as there is much your wrongful death attorney can do to help you through your case.
What Statutes Will Apply?
Regardless of whether you are going to hire an attorney to help with your wrongful death case, it is pretty darn vital to understand the applicable wrongful death statute.
I’m not talking just any wrongful death statute.
I’m talking about the wrongful death statute that will apply in your case.
There are so many reasons for this.
First, the wrongful death statute will generally state who can bring the lawsuit.
This is not the same in every state or jurisdiction.
Some states have laws will allow family members or others who might recover in a wrongful death lawsuit to bring the case.
Other states have laws which limit the wrongful death action to the personal representative or executor designated in the decedent’s will.
You might do a lot of work before you realize that you can’t even participate in the case.
Second, the wrongful death statute will generally state who can recover damages in the lawsuit.
Not everyone can participate or get money from a wrongful death claim.
While many friends and family members are damaged by the untimely death of someone they loved very much, there are only a few people who generally can get money in a wrongful death lawsuit.
This various by state.
If you haven’t reviewed the statute, you might do a lot of work before you realize that you are not a person who can recover in a wrongful death lawsuit.
Third, the statute will generally give some guidelines about what kinds of cases warrant a wrongful death lawsuit.
You might review the statute and find that the case doesn’t rise to the level of a wrongful death claim.
Fourth, the statute will tell you what kinds of damages can be recovered.
Not every kind of damage (physical or emotional) can be compensated in a wrongful death lawsuit, and this various from state to state.
For example, some statues allow punitive damages in wrongful death lawsuits, while others do not.
Commencing Your Wrongful Death Lawsuit
In general, the way to officially “commence” your lawsuit within the applicable statute of limitations is to do two things:
- File Your Complaint/Petition With The Court
- Serve The Complaint On The Defendant
If you file your complaint within the statute of limitations, but you fail to serve your defendant within the statute of limitations, you might not be able to proceed with your case.
Some states may require that you file a summons along with the complaint before the statute of limitations, while others may not.
There are always more little detail requirements that you will need to comply with, like some states may require that you file a statutory discovery request along with your complaint, while others may not.
Some states may allow you to personally serve the defendant, while others may not.
Serving The Defendant
When serving an important lawsuit upon a defendant, it is often worth the money to hire a professional process server.
Service of process (especially when you are troubled by an upcoming statute of limitations deadline) is critical to your case.
This is especially the case when the defendant is a corporation or a government agency.
There are many rules to follow to make service effective, especially if the defendant or business does not make it easy for you to serve them.
For example, in some states if you serve the front desk of a business, you are required to mail a copy of the summons and complaint to the business.
If you fail to perform the mailing, your service of the defendant make not be effective.
And this might not be something you discover until after the statute of limitations has passed.
(Yet another reason not to wait until the last minute)
What Does The Wrongful Death Complaint Need To Contain?
Getting the pleadings right is hard when you are not a practicing lawyer.
One of the best ways to get an idea of what you need to include (and what the complaint needs to look like) is to find recent copies of other wrongful death complaints filed in the state and court you intend to file your case in.
For example, let’s say you have read the statutes and you have confirmed that you are a person who can file the wrongful death lawsuit, that the statute of limitations has not passed, and there are damages to be claimed.
Let’s say that the wrongful death action was the result of a car accident.
See if you can find another recent case for wrongful death that was in the news or that you know of personally.
Do a public records request for the complaint and associated documents filed in the case.
You shouldn’t copy a complaint word for word, nor should you rely upon the steps taken by other parties/lawyers in their cases.
But at least you’d have a general idea of what a complaint would need to look like if you were going to file it yourself.
Let’s say you are planning to hire a lawyer, but still want to know what the case pleadings might need to look like.
This is a great time to do a public records request, as it will educate you greatly about these types of cases.
Another option would be to try and hire an attorney, not for the entire case, but to help you draft the complaint only.
Not every attorney will do this, but you might be able to find someone who will help you draft the document on an hourly basis, without agreeing to take on your case entirely.
If you are stuck with drafting the complaint yourself, and without help, check your state rules of civil procedure.
The rules of civil procedure include some rules of what a pleading must contain, such as:
- names of the plaintiff and defendant
- statement of facts that constitute the claim
- claim for damages
- demand for a jury trial (or not)
Sadly, drafting of pleadings is where many self-represented parties fail in their lawsuits, because pleadings are extremely specific and technical.
What Happens After I File And Serve A Wrongful Death Complaint?
The first thing a defendant will do after receiving a wrongful death attorney is usually to contact his or her attorney.
That attorney will then generally send a “notice of representation” to you via mail, email, or both, as well as give you a phone call to let you know they have been retained.
This is to make 100% sure you know they are involved, and that you now much comply with requirements of sending them copies of what you file, as well as communicate with them before taking certain actions (like filing motions).
There are time limits for how long the defendant has to file a written response to your complaint.
That response may be in the form of an Answer, or it may be in the form of motions, challenging the sufficiency of the complaint.
Still have questions about filing a wrongful death lawsuit?
We highly recommend that you contact an experienced attorney in this practice area to get a consult.
Even if the lawyer doesn’t take your case, you should get some helpful guidance about your case and how to go about filing your case.
Looking For More Information About Wrongful Death Cases?
We are building up a library of articles intended to assist people facing a wrongful death lawsuit from any angle.
The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.