Today we look at part 5 of our 6 part series on wrongful death and explore the details on how you file a wrongful death lawsuit. This article addresses the questions: “How long do I have to file a wrongful death suit?”, “How do I file a wrongful death suit?”, and “How long is the process?”
When, Where and How Do You File a Wrongful Death Lawsuit?
Normally, you have two years from the date of your loved one’s death to file a wrongful death action in California civil court against a no-governmental entity. In cases against governmental entities, you typically must file a wrongful death action within one year. If you fail to file your lawsuit by this deadline, you will lose your right to file at all.
The first action an attorney will take as your advocate in a wrongful death case is touching base with everyone involved in the accident. Both those who were there at the time and those who became aware of the situation after it occurred may be able to shed light on the facts, timeline and aftermath of the incident. Facts like these will form the basis for your case.
Your legal expert will likely speak with the defendant’s insurance agent or another representative to learn what, if anything, is on offer regarding a settlement. Your lawyer has the necessary experience in negotiations to advise you in your dealings with insurers, defendants, and corporate lawyers.
Before preparing the paperwork for your suit, you and your lawyer must sit down and decide the amount and type of damages you will seek. Although California statutes place no cap on damages in wrongful death cases, you should aim for a balance between protecting your family’s economic future and making your requests just and reasonable.
Filing the lawsuit
If the initial settlement offer is not adequate, your attorney’s next step is filing the required paperwork for your lawsuit. This filing consists of a summons and a complaint. The summons notifies the defendant that you have filed. The complaint details the incident, the defendant’s negligence or willful actions that caused the death, the damages you seek and why the defendant should pay them.
After you have approved and signed the summons and complaint, your lawyer will file them with the court and see that a process server delivers copies into the defendant’s hands. The defendant must respond within a specific time period. The response can take one of two forms: an answer to the complaint or a motion for dismissal of your lawsuit.
The judge must give any motion for dismissal due consideration before making a determination. If your complaint is strong and supported by facts, you have a better chance of getting your day in court.
Your case moves forward into a phase known as discovery. Discovery is the period when each side examines the other’s evidence. Typical means of obtaining this evidence include:
- A written questionnaire, called an interrogatory
- Formal requests for documents
- Requests for admissions in the form of “true/false” answers
- Depositions, or verbal questioning of witnesses recorded for the record
- Request for the production of evidence
Opposing parties in a legal dispute do not always wish to produce certain documents, witnesses or physical evidence. When this happens, the one making the request must file a “motion to compel,” which asks the judge to order the reluctant party to hand over the evidence.
Motion for summary judgment
If the defense files a motion for summary judgment following discovery, it may be implying that you do not have enough evidence to make your case. Such a motion might also be filed to get the judge’s ruling on matters of law, resolving them before the jury enters the equation. In some cases, the defense may use the motion as a tactical move designed to preclude or reduce your compensation.
Before your case goes to court, the parties involved typically meet with a legal negotiator for a settlement conference. This meeting is either mandated by the judge assigned to your case or requested by one of the parties to the lawsuit. During this conference, the mediator will review the aspects of the case and make suggestions for an equitable settlement. If your case is well-prepared and documented, the terms of the settlement are likely to be in line with what you are asking.
However, sometimes an insurance company employs stalling tactics designed to get you to accept less than you are asking. The firm may gamble that you are desperate for funds to pay the bills the death has already generated. It may also assume that you are not entirely prepared to see the matter through a long court battle.
When it comes to negotiating a settlement, legal representation is invaluable. Your lawyer must prepare a brief summing up your case, and your damages request to submit before the conference. As the meeting progresses, a lawyer with experience in such situations can evaluate the settlement offer, the mediator’s reasoning and the strategies of the defense. Your attorney will advise you accordingly.
Although most wrongful death cases are resolved by settlement before going to court, you do not have to settle. If you and your attorney agree that the offer is unacceptable, a jury will resolve the matter in court.
Several factors help determine how long a wrongful death lawsuit will take:
- The complexity of the case
- Your willingness to accept settlement
- The defendant’s willingness to settle
- The civil court caseload and trial schedule
Sometimes, the key parties in a wrongful death action settle right away. Sometimes, you will accept a later settlement, after weeks or months of negotiation. If your case goes to court, you are probably facing a considerably longer time frame, perhaps years.
Should you decide to pursue legal action, we hope these articles helps you know how to choose the best legal representation for your wrongful death action so you fully obtain just compensation for your losses. Your attorney should have a proven record of success in such cases as well as a strong background in liability litigation.
Other articles in this series
- Part 1: What is Wrongful Death?
- Part 2: Who Can Sue for Wrongful Death?
- Part 3: Wrongful Death – Why Hire an Attorney?
- Part 4: Why Sue for Wrongful Death?
- Part 5: How Do I File a Wrongful Death Lawsuit?
- Part 6: How Do You Prove Wrongful Death?
About the author:Rizio Lipinsky has an established history of providing committed and compassionate legal representation for the families of wrongful death victims in Southern California. The attorneys at Rizio Lipinsky have earned a solid reputation for success. Call them at 888-292-8888 to schedule a free initial consultation, or fill out the contact form today.