The Eight Factors Which Determine The Value Of A Wrongful Death Case
Here are the eight primary factors that determine the value of your wrongful death claim:
1. Your losses and the elements of compensation which are available to you under the law of the state which has jurisdiction over your wrongful death claim. The value of a wrongful death case will depend on the number of claimants involved and the damages that are recoverable. The wrongful death of a single, childless 19-year-old young man who is a high school dropout and also unemployed may be worth next to nothing compared to the wrongful death of a 38-year-old married physician who is a husband and father of four children ages 2,4, 6 and 8. With the latter, the surviving spouse and each child have individual claims for the loss of their husband and father. In addition, the physician’s estate has a claim for future lost net earnings, which may be worth millions of dollars if he was a high earner, as many doctors are. Yet, the 19-year-old’s death may only involve the estate’s claim for lost earnings, which may be difficult (if not impossible) to predict if the boy never had a good education or a well-earning job.
2. You and the type of witness you will make, and the type of witness each other close family member will make. Whether or not a jury will have sympathy for you isn't as influential as whether a jury will like you. This depends on many things. Will they feel empathy for you or will they dislike you? What prejudices will they have for you and against you? Do jurors know someone who has suffered a loss like yours? The claim adjustor's perception of a jury’s prejudices will also affect the value the insurance company or responsible company places on your claim. Look at the three examples of Jimmy. In each of them, Jimmy’s mom and dad will likely have sympathy from the jury as a cornerstone of the case. The claims adjustor will want to take Mom and Dad’s statement, get a feel for them as people to test the built-in sympathy factor, and if the parents pass the test, serious settlement discussions may follow. If Jimmy’s parents present as rude, obnoxious, or unsympathetic personalities, that could be a road block to settling the case.
The unwritten rule in personal injury law is that, all things being equal, juries like to give money to people they like and respect. If the deceased person’s surviving family members come across as likeable, trustworthy, respectable, and genuinely sympathetic, then the jury is likely to award a higher verdict then if family members appear dishonest, unlikeable, and unsympathetic. If the jury perceives that the survivors are using the lawsuit to “try and get rich” then the verdict may be disappointingly low, or the jury may find in favor of the defendant. But if the jury believes the survivors have suffered and endured much grief and loss as a result of their loved one’s death, then the verdict is likely to be high or at least satisfactory given the other facts and/or legal issues involved.
3. The jury’s likely perception of how valuable a life the deceased led, and how “good” or “bad” the deceased was. Whether the deceased was a “good” person, or if you had a “good” and close relationship with the deceased, is one factor that is also likely to color a jury’s view of a claims. It is easier to give more money for the death of a “valuable” or nice person than it is for someone who is perceived as a “bum.” Children are usually viewed in a positive light, but keep in mind Example C a few pages ago in which the child may have actually been to blame for his own death.
4. The amount of insurance or a corporation’s funds available to pay your claims. In most situations, when the defendant (the wrongdoer, the person, or company you're making a claim against) is either a person or a small company, the realistic maximum amount of money that can be collected regardless of the injury is the amount of the insurance available to cover your claims. Rarely does it make economic sense to pursue defendants beyond the amount of insurance coverage or readily available settlement funds they have set aside.
For example, in the case of a wrongful death claim that has a jury verdict value of $500,000 and a defendant that only has a $50,000 insurance policy, the choices are: 1) do you settle the case for $50,000; or (2) do you go to trial to get a judgment for $500,000, knowing the defendant has no other assets? You could go to trial, but you will likely never recover the higher amount. In a case like this, once you accept the $50,000 policy limit, you can consider the case as done and the expenses are likely minimal. There is no legal reason to go after more . If you are looking for more than the defendant’s insurance policy limits, you will have to go to court, get a jury verdict, and then try to collect that verdict from the defendant’s personal assets, if any exist. But filing a lawsuit and going to trial may cost you a minimum of $50,000 just in expenses alone (not including attorney fees). Washington state attorney ethics rules state that the $50,000 expense must be payable by the client and must come out of the recovery. If you get a verdict for more than $50,000, the defendant’s insurance company will tender its $50,000 policy limits to satisfy its contractual obligation to its insured. That money must then be paid to the lawyer to cover the litigation costs, like discovery expenses, expert fees, etc.
After the defendant’s insurance policy pays out to cover costs, you then will have to try and collect the remaining $450,000 from the defendant’s personal assets to satisfy the $500,000 judgment. If there are no assets, or if the defendant declares bankruptcy (which is likely), then the judgment becomes worthless. If the defendant does have assets, it may then take years and thousands of dollars in additional attorney fees and costs just to pursue collection efforts. This is why it is almost always preferable to accept the wrongdoer’s insurance policy limits instead of going to trial and trying to collect more. To do otherwise is incredibly risky, and you may have to spend a lot of money without any guarantee that you will get that money back. I tell my clients that you might as well go to Las Vegas and spend your money gambling there because at least you’ll know the odds of winning and getting your money back.
5. The identity of the wrongdoer, the type of witness he or she will make, and what he or she was doing at the time of the accident which killed the deceased. How will the jury view the person who is responsible for the accident which killed your loved one? Was the incident an understandable accident, with little chance to portray the responsible person as being “bad” or needing to be punished? Or was the wrongdoer grossly negligent, had the person been drinking/under the influence been drinking, or intentionally chose to design and build a defective product? Your experienced wrongful death lawyer will help you evaluate the strength or weakness of this factor to help you determine the value of your case.
6. The jurisdiction and venue of your case. A jury in a sparsely-populated rural county will likely judge the value of a case much differently than a jury in a heavily populated or urban area. The laws of some states may make proving your claim easier or harder. Some trial courts move cases quickly, others take many years to get a case to trial. These two factors are difficult to evaluate on your own, so you will want the help of an attorney.
7. The particular judge and jury you draw. A judge has a considerable amount of discretion over what evidence will be let in and kept out at trial. Some judges have a reputation for being “defense-oriented” versus “plaintiff-oriented.” You may also draw a conservative jury versus a more liberal jury. (These qualifiers aren’t political in nature, but go to how the jury reacts.) Each might value the case differently. Some judges and juries look more sympathetically on claims of a wrongful death claimant than in other jurisdictions.
8. The skill and reputation of your lawyer and/or legal team. Some lawyers have handled many different wrongful death cases so they will likely be much more versed in the status and nuances involved with the law that covers these types of claims. The skill of your lawyer will have a great deal to do with the value which is placed on your claim. As with anything in life, skill leads to success, success builds reputation, and, in the case of an experienced legal team, reputation leads to larger, quicker and more economically productive recovery.
Remember that this is only a quick and simplistic discussion of the eight factors that may affect the value of your case. You should consult with an experienced and successful wrongful death attorney to fully advise you about these elements and help you get a better idea about what you might reasonably expect in financial recovery. That advice, coupled with your lawyer’s counsel about your chance for success and the cost of pursuing your claim, will help you decide on whether to pursue a wrongful death case and what financial recovery you can expect.