Chapter 11: How Wrongful Death Cases are Litigated

Wrongful death litigation process OhioThe laws and procedures governing wrongful death claims are complex. This also holds true for the litigation process in a case as the rules governing litigation are often entirely dependent on the laws and procedures in the local jurisdiction. That is why it is extremely important that family members consult with an Ohio attorney who has experience litigating wrongful death cases if they live in the state.

Filing a Lawsuit

To file a wrongful death lawsuit, many documents must be provided to the court. The complaint sets forth the facts that support the claim along with a description or statement of the legal theories that are being alleged against the wrongdoer. The complaint will typically identify the parties, the facts or circumstances surrounding the person’s death and the specific laws which support or authorize the cause of action being brought to the court.

The person who files a wrongful death lawsuit is called the “plaintiff” while the person or party being sued is called the “defendant.”

The lawsuit is usually divided into different stages:

  1. information gathering or discovery phase
  2. pre-trial preparation stage
  3. pre-trial settlement or alternative dispute resolution stage, and
  4. trial.

The length of each of these stages or phases will depend on the complexity of the case as well as the laws and rules of the local jurisdiction where the case is being prosecuted.

In Ohio, a wrongful death lawsuit must usually be filed in the court of the county where either the death occurred or where one of the defendants resides. Each county has its own court. Each court may also have its own local rules about filing deadlines and setting trial dates.

The court will also have guidelines in place for motion practice. There are numerous motions that may need to be filed in a case concerning issues of law that must be decided by the judge. These issues may involve discovery matters, legal questions, and evidence questions.

Statute of Limitations

A wrongful death lawsuit must be filed in court within a certain period of time. This period is often called the statute of limitations. Depending on the jurisdiction, the statute of limitations may begin to run on the date of death, upon discovery of the person’s cause of death or upon discovery of a defendant’s negligent conduct.

The length of the statute of limitations period will vary depending on the laws of the jurisdiction that govern the wrongful death claim.

It is a dangerous practice to wait until the statute of limitations period is about to expire before filing a wrongful death lawsuit. If the lawsuit is filed right before the deadline, or if the defendant cannot be found or the wrong defendant is served, the case could be dismissed, and the plaintiff receives no compensation of any kind.

Another reason not to wait until the statute of limitations is about to expire is that important evidence in the case may be lost or destroyed. Witness memories can fade over time or important witnesses may move and be difficult to locate. The more time that elapses after a death, the greater the likelihood important evidence may be lost or destroyed. In short, waiting too long to investigate or prosecute the claim in court may cause irreparable damage to the case.

Authority to File a Lawsuit

Ohio law requires a personal representative be appointed on behalf of the deceased’s estate. This person acts on behalf of the deceased and is given authority by the court to file suit for the purpose of recovering damages in a lawsuit. A wrongful death lawsuit cannot be prosecuted until a personal representative is appointed by the court.

Oftentimes the personal representative is a surviving family member or a good friend of the deceased. Sometimes a professional such as another lawyer can be appointed as the personal representative.

In one claim an action is brought to recover damages on behalf of the estate (funeral and healthcare expenses, the deceased’s lost future earnings, etc.). In another claim, a lawsuit can be brought to recover damages for each surviving beneficiary. A surviving spouse may recover separate damages for the destruction of the marital relationship. Each surviving child may recover separate damages for the loss of the parent-child relationship. The damages claimed by each beneficiary are considered distinct and separate from the damages claimed by the estate.

The personal representative who brings the case will have a fiduciary obligation to the other interested parties in the action (other beneficiaries). This means that the personal representative has a legal duty to protect the interests of the estate and all beneficiaries who may have a right to recover damages in the case. The failure to fulfill this duty may subject the personal representative to legal liability.

The Discovery Process

After the lawsuit is filed and the defendant is served notice, both sides participate in a process of exchanging information about the case. This process is known as discovery. There are many different forms of discovery or different ways to request or obtain information from the other side in a case. The rules governing the discovery process are quite broad and allow each side to investigate what evidence and witnesses may be introduced at trial. Even if the requested information does not appear directly relevant to the case it may still be a proper request if it leads to the discovery of relevant information.

One form of discovery may involve sending or answering written questions called interrogatories. There may also be written requests for production of documents and other materials that are deemed relevant to the claims being made in the suit. There may be limits to the number of written questions or requests that can be exchanged depending on the local court rules. When the interrogatories and requests for production are answered and completed, the personal representative or beneficiary must also execute a document stating that the answers and responses are true and accurate.

Another form of discovery may include a deposition. A deposition is a face-to-face meeting where the attorneys can ask witnesses questions under oath while a court reporter transcribes the session. Any witness who may offer testimony at trial can be deposed, including the personal representative, a beneficiary (or surviving family member), the deceased’s doctor, the medical examiner or coroner, other family members, eyewitnesses, and experts otherwise involved in the case.

The deposition is a very important legal proceeding that should almost always involve preparation by the attorney and the person who is going to be deposed. The person’s performance at the deposition can have a huge influence on the success or value of the case.

In addition to interrogatories, requests for production, and depositions, each side’s lawyer may also be permitted to issue a subpoena. This is a request to produce documents or items in addition to requesting that the person appear at a deposition or trial.

The discovery phase can also include a request by the other side that the plaintiff or a beneficiary submits to a medical examination and/or a psychological evaluation. Ohio’s discovery rules permit one party to request such for the purpose of learning more about the person’s health and to evaluate their claim for damages.

The legal and factual grounds necessary to support a request to conduct a medical examination or psychological evaluation on a surviving family member will depend on the facts of the case and the issues involved. In most cases, the judge will have considerable discretion to grant or deny the request for a medical or psychological evaluation on a case-by-case basis.

Utilizing Expert Witnesses

After a case has been filed in court it will often require the assistance of expert testimony to help the attorney prove one or more elements of the action.

Since wrongful death cases can involve many different issues that can be complex and difficult to prove, an experienced attorney will want to engage the assistance of one or more experts early in the case. The success of a case may hinge on the credibility or knowledge of the experts involved. Therefore, it is extremely important that the attorney have substantial experience in handling wrongful death cases as well as having the knowledge of the different types of experts that may be necessary to achieve a successful outcome.

The term “economic damages” refers to those tangible damages that are considered easier to calculate such as lost wages, medical expenses, future income loss, or lost net accumulations to the deceased’s estate. Examples of economic damage experts include economists, medical experts, accountants, vocational experts, and financial care and life planners.

One of the most common types of damages requested in a wrongful death case are claims for the deceased’s future lost earnings or the future net lost accumulations to the person’s estate. A vocational expert may be necessary to help establish the deceased’s lost income and future occupational advancement opportunities. An economist or accountant may be necessary to calculate the present value of the future lost earnings based on the deceased’s occupation at the time of death, anticipated future promotions, and the person’s savings and consumption rate.

When utilizing experts to calculate economic damages, it is important to involve the expert early in the case and furnish them with all of the necessary documentation required to form an opinion.

The second category of damages consists of “non-economic damages” and refers to those subjective, or intangible types of loss that are often more difficult to quantify. They include pain, suffering, grief and the loss of the deceased’s love, society, companionship and affection. It is wise to retain one or more experts to address or discuss these types of damages to a jury.

Take a case involving the death of a child. The parents will likely suffer a substantial amount of psychological distress and suffering. It may be beneficial to use a psychological expert such as a psychiatrist, psychologist, or mental health therapist to discuss the parents’ loss of their child. There may be long-term emotional issues that surviving parents and children face as a result of losing a loved one prematurely. Using an expert to discuss, explain, and highlight these losses may be helpful in explaining the parents’ loss to the jury.

Another category concerns the deceased’s pre-death pain and suffering, as the law permits the estate to recover damages for such. If there is a dispute over whether the deceased did experience pain or fear before death, then a medical or psychological expert will be highly useful in establishing this fact.

The selection of an expert is a critically important factor that can have a huge influence on the success of any wrongful death case. Sometimes, the academic and professional credentials of the expert are extremely important. Other times the ability of the expert to teach and explain the field of expertise to a jury or layperson may be valued more highly than the expert’s academic credentials or success. Choosing which expert will work best is a judgment call best made by the attorney and should be based on the specific needs of the case.

Attorneys must also take into consideration the expense of hiring and using experts. There must be a real need for the expert to engage one for a case. And above all else, the attorney must choose experts carefully and use them in their capacity to highlight or explain certain issues in the case.

There may only be a few qualified experts in a field of study, so an experienced attorney may wish to retain one or more of these experts immediately before the defense attorney can do so.

The unique facts and circumstances of the case will dictate which type of expert to use and how many experts will be necessary in a given case. Because experts are a critical component in a successful case, it is usually beneficial to retain an experienced attorney early on so there is sufficient time to locate, hire, and brief each expert who may be necessary to support the merits of the claim.

Depending on the jurisdiction and the complexity of a case, the discovery phase in litigation may take many months or sometimes even years to reach completion. When discovery is finally completed, and each side generally knows what evidence will be offered at trial, the parties may then begin to conduct settlement discussions. Sometimes the laws of the particular jurisdiction or venue will require the parties to engage in meaningful efforts to settle the case other than negotiating between themselves. These efforts are sometimes referred to as alternative dispute resolution. One example of this is mediation.

In mediation, the parties agree to hire an impartial person (called the mediator) to help them settle the case. Often the mediator is a retired judge or an experienced attorney who has advanced training and education.

The process of mediation is usually voluntary and non-binding (unless a settlement is reached). This means that a mediator cannot force a party to settle and either party is permitted to reject offers from the other side. The expectation here is that the parties will participate in mediation in good faith and with the goal of trying to settle the case instead of going to trial.

A mediation session is a confidential proceeding so that anything said during the session cannot be used at trial. Mediation can be successfully used to resolve a case involving wrongful death claims. These sessions can be held over the course of one day or several days depending on the size and complexity of the case.

Evaluating settlement offers at mediation depends on many factors. The experience of the attorney is often important because a settlement offer will always be judged in relation to how a jury may decide the case. You will want an attorney who has successfully litigated wrongful death cases in the past. Both sides will attempt to predict how a jury might rule and then factor this into their evaluation of the case.

Preparing for Trial

If the case is not settled after discovery and mediation, then the case may proceed to trial.

Going to trial in a wrongful death case usually requires a tremendous amount of resources, time and preparation. The attorney invests a substantial amount of money and time in the case to conduct depositions, hire and prepare experts, create trial exhibits, and draft and prepare the necessary documents that must be filed in court.

The insurance companies and their attorneys know how expensive and time-consuming a case is to pursue. They may use this fact to their advantage by intentionally delaying resolution of the case over a long period of time.

The trial of a wrongful death case is usually more complex than other types of accident cases. There are typically more experts and other witnesses involved which means a trial can easily take weeks or months to conclude.

Add to this the fact that a trial can be much more physically and emotionally exhausting for all parties involved. A person’s life has been lost due to someone else’s negligence. As a result, people’s emotions usually run very high.

Sometimes the insurance company will go to extensive efforts to fight the case or attempt to minimize the damages being claimed. The case can also involve multiple claims with high potential values, causing the insurance company to believe it is in its best interests to defend the case vigorously when so much money is at stake.

A defendant’s insurance carrier may make a settlement offer that is considered on the low-end of a reasonable settlement range on the theory that the attorney will not want to incur the substantial expense and time of going to trial to increase that initial offer. Therefore, it is preferable that the case is handled by an experienced and competent attorney who not only has the expertise to pursue the claim, but also the financial resources to take the case all the way through a trial if necessary.

Still, it is true that most people do want to avoid going through with a trial. They are stressful and can cause additional anxiety for everyone involved. A trial is usually the last resort to resolve the claim. The insurance company will not want a serious or significant case to go to trial particularly when there is not a serious dispute about the defendant’s negligence and the cause of death.

Some insurance companies have a reputation for utilizing specific tactics to prolong the litigation process to wear down the attorney and the family so that they will accept a smaller settlement.

It is only by threatening to advance the case and thoroughly preparing for trial that an attorney can secure a reasonable and fair settlement offer for the estate and each surviving beneficiary.

You don’t want to hire a lawyer for a case only to find out a few weeks or months before trial that the lawyer has limited experience handling wrongful death cases or has never tried a significant case in court.

Back to chapter 10

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