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Wrongful Death Claims
When a person’s death results from an individual’s negligent, reckless, or deliberate actions, a wrongful death claim can be made against that person. Survivors must establish that the defendant was responsible for the decedent’s death and that the survivor(s) experienced identifiable losses resulting from the decedent’s death. In general, family members, including spouses, children, and parents, qualify to pursue a wrongful death claim. The three types of recoverable damages are:
- economic losses (lost income, lost earning capacity, medical bills, funeral expenses);
- non-economic losses (loss of companionship, pain and suffering); and
- punitive damages in certain instances.
Each state establishes a statute of limitations governing wrongful death lawsuits. In Illinois, the statute of limitations requires wrongful death claims to be filed within two (2) years from the date of death. It is therefore crucial to take immediate action to protect your rights.
The Importance of Properly Evaluating Your Attorney
Many wrongful death settlements fail to account for long-term losses and contain expansive release provisions that limit the ability to pursue future claims, including punitive damage claims.
Therefore, hiring an attorney without proper vetting may result in missed deadlines, inadequate representation of your case’s value, and inadequate communication at a time when you need it most. The following questions are intended to enable you to properly assess an attorney’s ability to represent your family’s interests.
Questions Relating to Your Attorney’s Experience and Expertise
- How many wrongful death cases have you represented, and what were the outcomes? An attorney with a proven track record of success in wrongful death matters is better equipped to maximize your family’s recovery.
- Have you represented other clients with similar claims as those in your matter? Different types of wrongful death claims require varying levels of expertise. For example, car accidents, workplace fatalities, and product defects require differing legal strategies.
- Do you utilize subject matter experts (e.g., medical specialists, accident reconstructionists, financial experts) to support your representation of clients? Utilizing experts can enhance your case’s strength and ultimately contribute to maximizing your client’s recovery.
- Are you admitted to practice law in the jurisdiction in which your client’s case will be litigated? Long-arm statutes govern where wrongful death claims can be brought when the defendant resides outside of your home state.
Has a Loved One Been the Victim of a Wrongful Death?
Questions Relating to Your Attorney’s Case Strategy and Evaluation of Your Claim
- Is there a valid wrongful death claim in my case? Establishing negligence is the fundamental first step to pursuing a wrongful death claim.
- What obstacles do you anticipate arising in my case? Effective attorneys identify obstacles early (e.g., disputed liability, multiple defendants, and difficult-to-obtain evidence) and describe how they intend to overcome these obstacles.
- How will you determine the value of my damages? Ask whether your attorney accounts for the following elements: lost income; lost earning capacity; household services; inflation; and non-economic losses (i.e., loss of companionship).
- Will your strategy for handling my case focus on settlement or litigation? Strong attorneys are prepared to either settle a case or proceed to trial. Additionally, a strong attorney should be able to clearly advise you regarding which approach best serves your case.
Questions Relating to Your Attorney’s Estimated Timeline and Process
- Approximately how long will it take to resolve my case? The length of time it takes to resolve a case varies based on factors including the complexity of the case, court calendars, and the dispute between the parties and the insurance company.
- What deadlines apply to my case, and how will you ensure compliance with these deadlines? Statutes of limitations are rigid, and failure to comply with a statute of limitations can forever preclude your family from recovering damages.
- Will my case likely settle, or will it go to trial? Request that your attorney candidly assess whether your case will likely settle or go to trial based on their experience with similar cases.
Questions Relating to Your Attorney’s Fee Structure and Expenses
- Does your firm operate on a contingency fee basis? Most wrongful death attorneys work on a contingency fee basis and collect a percentage of the recovery. Clarify when your attorney’s fee will be assessed, and confirm how costs will be treated (i.e., prior to or subsequent to the collection of attorney’s fees).
- Am I obligated to pay anything if we are unsuccessful? Clearly understand the terms of the agreement regarding who is responsible for paying costs and/or attorney’s fees if the case is unsuccessful.
- Are there tax implications that I should consider? Certain aspects of a wrongful death settlement may be subject to taxation. Your attorney should discuss with you the tax implications of the fees and taxes associated with your recovery.
Questions Regarding Communication
- Who will be primarily responsible for working on my case? Identify whether senior attorneys or junior associates will be working on your case.
- How frequently will you keep me informed of developments in my case, and what methods will you use to communicate with me? At Shuman Legal, we believe our clients should receive frequent updates and copies of all correspondence and filings related to their case – not just when something adverse occurs.
- Are you accessible outside of normal business hours? Evaluate the level of availability and responsiveness of your attorney to telephone calls and email requests.
Questions Regarding Settlement and Damages
- How will you determine the amount of a settlement offer? Your attorney should consult financial or actuarial experts (not merely rely on the initial offer from the insurance company).
- Will all of the interests of the beneficiaries be fairly represented? Verify that the distribution of funds from the settlement will be equitable among all qualified beneficiaries.
- Can punitive damages be pursued in my case? Punitive damages serve to punish the defendant for outrageous behavior, and can provide a strong bargaining chip in negotiations.
- What are the advantages and disadvantages of a structured settlement versus a lump sum? Consider the payment options, tax implications, and long-term financial stability provided by a structured settlement compared to a lump-sum settlement.
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Questions Regarding Your Legal Rights and Agreement Terms
- What rights am I releasing by signing the settlement agreement? Many agreements include provisions releasing all existing and future claims. Ensure you fully understand what you are relinquishing.
- What happens if new evidence is developed after the settlement agreement is signed? Most wrongful death settlements cannot be reopened, regardless of any new evidence that develops.
- Who must sign the agreement to make it binding? In certain states, all statutory beneficiaries must sign the agreement, and in some jurisdictions, court approval may be necessary.
Questions Regarding Insurance Coverage and Documentation
- What insurance coverage is applicable to this claim? Additional coverage, such as umbrella coverage or additional layers of coverage, may be available beyond the primary policy.
- What documentation will I need to provide to support my claim? Common documents include: medical records, police reports, income statements, death certificates, and information about witnesses.
- Will you manage communications with the insurance adjuster? Shuman Legal handles communications directly with insurance companies on behalf of its clients to avoid any potentially damaging statements that may harm your case.
Next Steps to Seeking Justice for Your Family
Selecting the right wrongful death attorney is one of the most significant decisions your family will make during a time of extreme emotional distress. Probing the attorney regarding his/her qualifications, strategy, and dedication to your family’s best interests will assist you in identifying an attorney capable of obtaining the highest monetary recovery possible, communicating regularly and effectively with you throughout the process, and protecting your legal rights throughout the entire process.
At Shuman Legal, we have been representing wrongful death clients for over 25 years. Our philosophy is to put our clients’ interests first. We also genuinely want to see that justice is served for grieving families. In addition to providing free resources, settlement guidance, and regular updates regarding your case, we believe that you should never be uncertain regarding the status of your case. Contact Shuman Legal today to schedule a complimentary consultation. Statutes of limitations are extremely unforgiving. The sooner you seek assistance from an attorney, the better position your family will be in to achieve a favorable outcome.
