Causing the death of another person is often a crime. The police often investigate deaths and prosecutors can charge people as responsible and sentence them to serve a prison sentence.

Separate from the criminal law associated with death, plaintiffs can bring civil litigation claims against defendants, alleging that they caused the death of another person and seek damages to compensate for the loss. While this may sound duplicative of the criminal law process, it operates somewhat differently. The procedure is more similar to a traditional business dispute, although with the drama and distress that comes with the loss of life.

Why should you read this post about wrongful death claims?

Someone is suing you for wrongful death and you are confused and terrified.
You want to know how there could be a trial about a killing after the defendant was already found not guilty.
You want to know how a dead person could sue anyone.

Image credit: https://en.wikipedia.org/wiki/Death#/media/File:Hendrick_Andriezsoon_-_Vanitas.JPG

Who Brings Wrongful Death Claims?

Criminal cases are brought by prosecutors, but wrongful death claims are brought by ordinary people. As a result, a claim that a prosecutor may not think is viable may still proceed when brought as a civil claim by a private plaintiff.

Every lawsuit needs a plaintiff who was injured by the defendant, and thus has standing to bring a claim. But an obvious issue arises in wrongful death claims: the injured person is dead and therefore cannot hire a lawyer or assert her claim. Nor does a dead person have any use for money to compensate for any injury she suffered, or even the ability to hold on to money.

After a person dies, the law recognizes the power of an administrator to the deceased person’s estate to assert claims on the person’s behalf. Often this person can bring claims to recover all of that person’s assets so that they can be properly distributed to her heirs. A wrongful death claim is no different: the decedent would have been entitled to the money from the lawsuit, and once it is collected, the administrator of the estate can distribute it to the decedent’s heirs.

Deciding who the administrator is, however, is a complicated process that is the subject of an entirely different area of the law.

In addition to the administrator, some state statutes permit family members of the decedent to sue for wrongful death in their own names, seeking compensation for the loss of a family member.

Many of these claims are brought against doctors or people involved in medical care after a decedent died following treatment with the defendant. These are situations where the government does not usually prosecute for murder and where the defendants are almost always insured and thus in a position to pay settlements to plaintiffs’ lawyers.

The Burden of Proof Is Lower Than a Criminal Case

In a criminal murder trial, the government must prove that the defendant is guilty beyond a reasonable doubt. But at a wrongful death trial, the plaintiff need only demonstrate that the defendant is liable by a “preponderance of the evidence,” which just means that it is more likely than not that the defendant is liable. This difference in the burden of proof helps explain why a defendant may be found not guilty in a criminal case, but liable in a civil one, as in the O.J. Simpson case.

A criminal case also often requires the prosecution to get an indictment from a grand jury and to prove the defendant had criminal intent. Even in a manslaughter or criminal negligence case, some laws may require the government needs to prove the defendant was so negligent or reckless that she should be punished. But in a wrongful death case, a plaintiff need only establish that the defendant’s negligence or “wrongful act” caused the death of the plaintiff.

There is No Right to Free Counsel

In a criminal case, defendants have a constitutional right to a free lawyer. Therefore, defendants in a murder case often get a very experienced lawyer to represent them, regardless of their ability to pay.

But in a wrongful death case, there is no constitutional right to a free lawyer. As a result, many defendants either default, or defend themselves, or hire a lawyer at their own expense. Similarly, the plaintiff may need to hire their own lawyer, although many will work without being paid by the plaintiff if they believe the case is likely to succeed, with the expectation they will get a portion of the recovery.

Damages

One purpose of a murder trial is to determine whether to punish the defendant and how severely. It could send the defendant to jail or, in some situations, order an execution. Another purpose of a murder trial is to decide whether a defendant is guilty and to make a statement about the wrongness of her conduct.

A wrongful death case shares some elements, but differs somewhat. A private litigant cannot ask a judge to put a defendant in jail or execute her for a wrongful death claim. Plaintiffs in civil claims are largely limited to seeking money damages. And so the purpose of the case is largely to determine whether the defendant owes the plaintiff money. But the cases may also provide a forum to establish a defendant’s guilt and make a statement about her culpability.