If the case does not settle after discovery and ADR or mediation has failed, then the case may proceed to trial. Each side has the option of trying the case before a judge or jury. Depending on the jurisdiction, a jury trial may not happen automatically. One party may have to specifically request that the case be decided by a jury as opposed to a judge. In most wrongful death cases, the defense attorney will request a jury trial by filing a document in court called a jury demand and then paying a jury fee to the clerk. In Washington, the court rules usually require that certain documents must be filed and exchanged within 30 to 90 days before the trial date. These documents may include each side’s witness and exhibits list, pre-trial motions, objections to evidence or trial exhibits, trial memorandums, and jury instructions, among others.
 
Going to trial in a wrongful death case usually requires a tremendous amount of resources, time, and preparation. The wrongful death attorney usually has to invest 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 wrongful death case is to pursue. As a result, they may use this fact to their advantage by intentionally delaying resolution of the case over a long period of time.  
 
The wrongful death trial is usually more complex than other types of accident claim. Typically, there are more experts and other witnesses involved which means a wrongful death trial can easily take weeks or months to conclude. A wrongful death trial is usually much more physically and emotionally exhausting for all parties involved. By its very nature, the case involves a terrible fact: a person’s life has been lost due to someone else’s negligence. As a result, people’s emotions usually run very high, especially those of the surviving relatives and family members.
Sometimes, the insurance company will go to enormous efforts to fight the case or attempt to minimize the damages being claimed. The value of a wrongful death case can easily involve multiple claims that run into the millions of dollars, so the insurance company may feel that it is in its best interests to defend the case vigorously when so much money is at stake.

Often times,, the defendant’s insurance carrier will make a settlement offer that is considered on the very low end of a reasonable settlement range on the theory that the wrongful death attorney will not want to incur the substantial expense and time of going to trial to beat that offer. This is why it is preferable that the wrongful death 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 to trial if necessary.
 
Understandably, most people want to avoid going to trial. They are stressful and can cause additional anxiety for everyone involved. Usually a trial is the last resort to resolve the claim. Often times, the insurance company will not want a serious or significant wrongful death case to go to trial, particularly when there is no serious dispute about the defendant’s negligence and the cause of death. However, some insurance companies have a reputation for utilizing “scorched earth” litigation tactics. This involves needlessly forcing and prolonging the litigation process in an effort to “wear down” the wrongful death attorney and the family so that they will accept a smaller settlement. Sometimes, this will include forcing an unnecessary trial, particularly if the insurance company is convinced that the wrongful death attorney has little experience in trying injury cases in court.

Often times, it is only by threatening and preparing for trial that a wrongful death attorney is be able to secure a reasonable and just settlement offer for the estate and each surviving beneficiary. This is usually why it is extremely important that any wrongful death claim be handled by an attorney who has experience with wrongful death cases. You don’t want to hire a lawyer for a wrongful death 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. In those situations, it may be too late to hire another attorney to take over the case.