Your odds of winning any personal injury lawsuit in Arizona, including one involving the wrongful death of a family member, depends on three broad considerations: the strength of the evidence supporting your claim, administrative factors like whether you file your claim within the relevant statute of limitations, and the training, experience, and expertise of your wrongful death attorney.
Because these considerations vary from case to case, it is hard to say with certainty how likely you are to win a wrongful death case.
If you talk with an experienced wrongful death lawyer, like one of ours at Stone Rose Law, we can help you assess the strength of your claim and represent you in settlement negotiations or in court. Call us at (480) 498-8998 to speak with a wrongful death law specialist, or contact us online to learn more.
In this post, we discuss the fundamentals of assembling the strongest case possible to win a wrongful death lawsuit.
Personal injury cases generally, including wrongful death lawsuits, depend on evidence to state a legal claim and to prevail on the merits of that claim. Even the best attorney will have trouble winning your case if the evidence is insufficient.
The elements of an Arizona wrongful death claim establish the kind of evidence you need. These case elements are:
You must prove that more likely than not that the defendant’s behavior and its consequences trigger all four of these elements. If you fail to prove any one of them, your wrongful death claim will fail.
Let’s examine these elements more closely to determine what evidence is needed to prove them.
The essential, reasonable, duty of care we all owe to one another is to not do things that put others at risk of harm. The kinds of behaviors to avoid engaging in depend on the specific circumstances surrounding the defendant and the deceased person.
For example:
It follows that the kind of evidence you need to prove the existence of a reasonable duty of care is situation-dependent. In a case involving a car accident, for example, evidence that the defendant was speeding excessively, texting while driving, or running a red light would help to establish not only a reasonable duty of care but also its breach.
To prove the causation element, the breach of a reasonable duty of care must lead to harm in a “but for” sense. What this means is that “but for” the defendant’s breach of duty to the decedent, the decedent would have survived.
If we continue with the car accident above, evidence proving causation could include the defendant’s texting and driving leading to the defendant running a red light and broadsiding the decedent’s vehicle as it entered an intersection, thereby causing fatal injuries.
But for the defendant’s distracted driving, the accident would not have happened and your family member would not have been fatally injured.
The measure of harm in a civil lawsuit, including a wrongful death action, is money damages. The evidence you need to establish the harm you have suffered because of the wrongful death of a loved one can be direct or indirect in nature.
Direct damages (also known as economic harm damages) are the easiest to gather evidence for because of their immediate and measurable connection to the death of the victim.
Proper documentation such as medical bills, funeral expenses, and proof of lost income is essential to support a claim for economic damages in a wrongful death case to ensure fair compensation. Examples of direct harm evidence can be:
If the decedent provided economic support to the family through employment, then another example of direct damages evidence can be the value of the lost wages that the decedent would have earned if the fatal injury had not occurred.
Indirect damages are also known as non-economic damages.
These kinds of damages are generally not provable through receipts or calculation of lost hours, but are more subjective in nature. Your emotional suffering, pain and damages, and mental anguish that result from the wrongful death of a loved one are examples of indirect damages.
Other indirect damages can include the loss of consortium for the decedent’s spouse and the loss of emotional support and guidance for the decedent’s children.
The evidence to establish the existence of indirect harm to you can include your testimonial evidence and testimony of others who have witnessed the effects of the decedent’s passing on you. Testimonial evidence can also be written evidence in the form of journals or diaries in which you describe your sense of loss because of the wrongful death.
If you have to attend mental health counseling or therapy to cope with the loss of the decedent, records of this treatment can be evidence.
You do not need to establish the specific dollar value of indirect damages. In a court case, the jury (or the judge if no jury is present) will decide the value of your non-economic harm. Your evidence must make it clear that you suffered the harm.
We mentioned above that having the best lawyer possible will not help you win a wrongful death suit if you do not have enough supporting evidence. Similarly, if you miss important legal deadlines in a wrongful death lawsuit, then it does not matter how strong your evidence is or how good your lawyer is: you could still lose the ability to make the claim.
The most important of these deadlines is the Arizona statute of limitations that applies to wrongful death actions. ARS 12-542(2) sets a two-year statute of limitations for most wrongful death claims, however, there are certain wrongful death cases that only have a one-year statute of limitations. The statute of limitation period begins on the date of death of the deceased victim. Contact an experienced wrongful death attorney at Stone Rose Law to inquire which statute of limitations period (again, either 1-year vs. 2-year) applies to your specific case.
It is important to speak with a personal injury attorney as soon as possible if you believe that you may have a wrongful death case. The more time your lawyer has before the statute of limitations is set to expire, the better that person can investigate the facts and gather evidence to support your claim.
Most personal injury lawsuits, including wrongful death actions, settle out of court. The more time you give your attorney to prepare your case before having to file a lawsuit, the stronger your negotiating position will be with insurance companies or with an attorney for the defendant.
The person who ties together your wrongful death claim into a cohesive whole is your wrongful death attorney. It is this person’s role to find and gather your supporting evidence, to identify the harm to you that you can seek compensation for, to present your case in the most compelling way possible in settlement negotiations, and to preserve and, if necessary, exercise your right to go to court.
Not all lawyers are well-suited to represent you in a wrongful death case. The best place to start when looking for the best law firm to represent you in a wrongful death claim is one that has attorneys who specialize in personal injury actions and who have experience negotiating and trying wrongful death actions.
A highly experienced plaintiff’s attorney can do the following specific things to strengthen your Arizona wrongful death claim.
Sometimes, more than one person or company can be a responsible party in contributing to a loved one’s death.
In a fatal crash, for example, the defendant’s actions as a driver may commit a wrongful act by violating traffic laws, but a contributing factor could be someone else’s negligence in performing faulty brake repairs that prevented the other vehicle from stopping in time.
In a wrongful death lawsuit, there is no such thing as having too much evidence. Not just evidence, but quality, relevant and admissible evidence.
This means that your lawyer must know what kind of valuable evidence to look for, and how to get it.
Here are some of the ways that an experienced attorney will gather evidence:
In realizing a favorable outcome and receiving maximum financial compensation, “You don’t get what you deserve; you get what you negotiate” is as true in a wrongful death settlement as it is in business dealings. You may seek justice for the defendant’s negligence, but the defendant’s lawyer is not interested in reaching a fair settlement as much as in minimizing the defendant’s liability and legal obligation to pay.
Defense attorneys and insurance company lawyers can and will engage in hardball negotiation strategies to minimize settlement payouts. They will make you a lowball initial settlement offer. They will debate the strength of your evidence. They will claim that your deceased loved one was responsible for what happened. They will engage in delay tactics.
An experienced wrongful death attorney knows these tactics and strategies and will not be daunted by them. He or she will also know how to present your evidence in the strongest possible way to encourage the other parties to treat you and other surviving family members fairly, to prove liability, and to hold each responsible party accountable.
Many wrongful death cases settle, but not all of them do. Your legal team must be ready to take legal action if settlement negotiations fail. This is not only sound legal representation; the real possibility of such a lawsuit is also effective during settlement negotiations to get the other side to take you seriously.
Winning a wrongful death lawsuit requires thorough preparation. This is why it is important not to wait until the last moment before the statute of limitations runs out to get started. It also means that you must convince the defendants and their lawyers that you are not just bluffing about the possibility of taking a wrongful death suit to court.
The credible threat that you are ready to file a wrongful death lawsuit is key to your chances of winning in settlement negotiations, and the odds of a successful wrongful death suit depend on how well-prepared your wrongful death attorney is to take the matter to trial.
Lastly, but still importantly, an experienced wrongful death attorney understands that you and other surviving family members are not just a claim number and a collection of legal files. You are human beings who have suffered a terrible loss from the untimely and preventable loss of a loved one’s death, and your emotional distress is all too real.
In helping you seek legal recourse through a wrongful death lawsuit, a compassionate attorney never forgets to treat you with dignity and respect, and will see to it that the other parties, other attorneys, and the legal system itself will treat you fairly and with respect as well. Ultimately, representing you is not just about improving your chances of winning; it is about ensuring your loved one’s memory is honored and that justice is served.
A wrongful death settlement can never make up for the loss of your loved one, but it can help provide your family with financial support at this difficult time.If you have recently lost a family member because of someone else’s negligence, call Stone Rose Law at (480) 498-8998, or contact us online, so you can begin with a free consultation with a Phoenix wrongful death attorney.
