How to Fight a Wrongful Death Lawsuit

When a person dies because of someone else’s negligence, the deceased’s family members may be able to file a wrongful death lawsuit. How do you fight and win a wrongful death case?

This article will discuss who can file a wrongful death lawsuit, what evidence is needed to build a solid legal case, the types of damages you may be entitled to, and how hiring a lawyer can help ensure your lawsuit is successful.

What Is a Wrongful Death Lawsuit?

Unintentional injuries or accidents are the fourth-leading cause of death in the US. Many of these tragic fatalities result from someone else’s negligent action or inaction.

A wrongful death lawsuit is a civil claim brought by the surviving loved ones of a deceased person whose death was caused by another party’s negligence or intentional actions.

Some common causes of wrongful death lawsuits are:

The purpose of a wrongful death lawsuit is to hold the at-fault party liable for their actions and provide compensation to surviving family members for their loss.

Who Can File a Wrongful Death Lawsuit?

Each state has laws governing who can file a wrongful death claim.

Depending on state laws and the circumstances of the wrongful death, one or more of the following parties may be able to file a claim:

  • The surviving spouse
  • The decedent’s children
  • The parents of the deceased
  • The siblings of the deceased
  • The executor of the will
  • The court-appointed personal representative of the decedent’s estate

If you are unsure whether you qualify to file a wrongful death lawsuit, a lawyer can help answer any questions that you may have. Justin Minton Law Firm offers free consultations for this reason.

What You Need to Prove When Fighting a Wrongful Death Lawsuit

Most wrongful death suits result from some sort of negligent act. Proving negligence can be complicated and takes a lot of time and preparation. An experienced wrongful death attorney will likely have handled many wrongful death cases and knows what is needed to win.

To recover compensation for wrongful death, you must prove the following elements.

Duty of care

The first step in building a successful wrongful death claim is proving that the defendant owed the deceased person a duty of care. In other words, he or she was responsible for protecting the deceased party from harm.

Consider the following examples of duty of care:

  • Drivers have an obligation to avoid distractions and obey traffic laws
  • Doctors have a responsibility to practice medicine responsibly and treat their patients with reasonable care
  • Product manufacturers must test their products before distribution and ensure they are safe for consumers
  • Store owners have a duty to keep their premises well-maintained and free from hazards

Breach of duty

Next, you will need to show that the defendant breached the duty of care that was owed to the deceased person.

As an example, if your family member was killed in a car accident because the driver was texting, you will need to provide cell phone records or other evidence proving the other driver was distracted at the time of the collision.


When fighting a wrongful death lawsuit, you must also be able to prove that the defendant’s negligence was the direct cause of your loved one’s death. Causation might be easier to prove in some cases than others.

If a truck driver collided with a pedestrian who died on the scene, it is evident that the accident caused the death. On the other hand, when a doctor fails to diagnose a patient with a life-threatening health condition and the patient dies, it might be more challenging to prove causation.


The last element of a wrongful death claim is proving that the death of the victim resulted in damages.

Recoverable wrongful death damages may include:

  • Funeral bills
  • Burial expenses
  • Medical expenses incurred before the victim died
  • Lost wages and loss of future income
  • Pain and suffering
  • Loss of household services
  • Loss of companionship

Depending on the circumstances surrounding the accident, the party bringing the wrongful death claim may also be awarded punitive damages. These types of damages are designed to punish the defendant and discourage similar acts of wrongdoing.

Evidence Used in Wrongful Death Claims

Winning a wrongful death case requires sufficient evidence proving fault and liability. You will need evidence to establish the cause of death, the extent of damages, and the defendant’s liability.

Evidence needed for wrongful death claims may include the following:

  • Death certificate: This will state the cause of death as well as the time and date of death. 
  • Medical records: The deceased’s medical records are often the most important piece of evidence in wrongful death claims. Test results, consultation records, evaluations, prescriptions, and other documentation provide proof of the victim’s injuries and any medical treatment received before his or her death.
  • Police reports: When a wrongful death occurs, an officer will be called to the accident scene to conduct an investigation and write an incident report. The police report can contain valuable information, such as the officer’s opinion as to the cause of death, eyewitness statements, and other evidence.
  • Autopsy report: In some situations, the cause of death may not be easy to identify. An autopsy report can provide insight into how the decedent died. For example, in a medical malpractice suit, a toxicology report can provide proof of a prescription mistake or medical error.
  • Witness statements: Statements from those who were eyewitnesses to the accident can help establish events leading up to your loved one’s death and provide a firsthand account of what happened.
  • Photos and videos: Videos from traffic cameras, CCTV surveillance footage, and photos can help provide visual evidence as to the cause of the accident and death.
  • Employment and financial records: If the accident victim was employed before his or her death, employment records could help establish lost earnings. Pay stubs or bank statements can be used to calculate the loss of future expected earnings and prove that the decedent had family members that were financially dependent on his or her income.

Do You Need a Lawyer to File a Wrongful Death Lawsuit?

By law, you do not need a lawyer to file a wrongful death lawsuit. You can file the suit and complete the whole process yourself if you are entitled to by state law.

However, fighting a wrongful death lawsuit is a long and strenuous process. There are many intricate details to consider with each and every case. Unfortunately, without a lawyer assisting you, the entire burden of proof would fall on you.

The time following the death of a loved one is already challenging, and you will likely add more stress to your life by trying to handle a wrongful death suit on your own. On the other hand, when you let a lawyer handle your lawsuit, he or she will work hard to ensure your case is successful while you spend time with your loved ones during this time of mourning.

How a Lawyer Can Help You With a Wrongful Death Lawsuit

While it is true that you can file a wrongful death case on your own, your claim will have a greater chance of success with an experienced attorney on your side. After all, the job of a wrongful death lawyer is to fight for the loved ones of someone who has been killed.

A wrongful death attorney represents family members and others who seek justice for a death caused by negligence. When you hire a wrongful death lawyer to handle your claim, he or she can handle every aspect of your case.

Investigating your loved one’s death

Experienced attorneys will begin by investigating the cause of your loved one’s death. They will gather evidence and learn as much as possible about the events leading up to the time of the death. This may include visiting the accident scene, speaking to eyewitnesses, obtaining physical evidence, consulting with experts, and more.

Knowing what caused the death is an essential step in knowing if you have a valid wrongful death claim and identifying all liable parties.

Explaining your legal rights

An important part of a wrongful death attorney’s job is to help the family members of the deceased understand their legal rights. A lawyer will clearly explain what your rights are under the law and answer any questions you may have.

An attorney will advocate for your best interests and do what he or she can to help you pursue justice and financial compensation.

Calculating damages

A wrongful death lawyer will be able to accurately calculate the value of the monetary damages owed to the surviving loved ones of the deceased. As mentioned previously, this can include money for medical bills incurred prior to death, funeral expenses, pain and suffering, and more.

Your attorney will make sure that all damages are accounted for so that you and your family receive the full amount of compensation you are entitled to receive.

Negotiating a settlement

At Minton Law, we understand the financial strain that surviving family members may be facing. For this reason, we work hard to quickly negotiate a fair settlement for our clients.

The majority of wrongful death cases are settled out of court through negotiations with the insurance company or legal representatives of the liable party. Your personal injury lawyer will use his or her knowledge of the law and the evidence gathered to represent your best interests.

Litigating in court

An experienced wrongful death lawyer will be trial-ready. If a fair settlement cannot be reached through negotiations, your lawyer will fight for your rights in court.

He or she will file all necessary documents, present evidence, argue the case, and work hard to obtain a favorable verdict on behalf of you and your family.

How Quickly Should You Hire a Wrongful Death Lawyer?

The days, weeks, and months following the death of a loved one are stressful times for surviving family members. It can be difficult to think about anything more than planning the funeral and the day-to-day needs of your family.

While the thought of speaking to a personal injury lawyer is likely the furthest thing from your mind during this time, it can be to your family’s benefit to do so as soon as possible. The sooner you consult with an attorney, the faster he or she can begin building a solid case by gathering evidence before it is lost or destroyed.

Another reason to quickly hire a lawyer is because there is a statute of limitations on wrongful death cases. Each state has its own deadlines, so it is important to find out how long you have to file so that you do not lose out on your right to compensation.

Can You File a Wrongful Death Lawsuit If the Deceased Was Partially At Fault?

If your loved one was partially at fault for the accident that caused his or her death, you may be wondering whether you can still file a wrongful death lawsuit. You may still be able to sue, depending on the laws of the state where the wrongful death occurred.

If the deceased was found partly to blame, the value of the wrongful claim will usually decrease accordingly. This is based on the rule of comparative negligence.

What Is Comparative Negligence and How Is It Applied to Wrongful Death Claims?

The concept of comparative negligence allows blame to be shared and damages to be awarded based on an individual’s share of fault. The judge or jury decides what percentage of blame to assign to each party.

The monetary value of recoverable damages in a wrongful death lawsuit is reduced by an amount equal to the percentage of fault placed on the decedent. For example, if the deceased was found to be 30 percent to blame for the accident, then the family would only be able to recover 70 percent of the damages they otherwise would have been entitled to receive.

Some states, like Arkansas, are modified comparative negligence states. Under this rule, if a victim is found to be 50 percent or more at fault for an accident, he is unable to recover damages from other parties involved.

This applies to wrongful death cases and means, if the deceased was over 50 percent at fault for the incident that caused his or her death, the family would not be able to pursue damages from other parties.

Common Wrongful Death Lawsuit Mistakes to Avoid

The success of your wrongful death claim will somewhat be contingent on the steps and actions you and your family take. A seemingly minor error can damage your case and diminish the value of your recovery.

Avoid the following mistakes when pursuing a wrongful death case.

Making a public statement

Depending on the situation, the death of your loved one could be covered by local or even national news media outlets. While it may be tempting for a family member to give a statement to the reporters, remember that it’s best to avoid speaking publicly about the decedent’s death.

Anything you say may be used against you by the defendant in your wrongful death case, even if the statement seems harmless at the time. Rather than speak to the media, there are better ways to pursue justice and ensure your loved one’s memory is protected.

Fighting with family

It is understandable that the sudden loss of a loved one has caused your family a great deal of stress. You and your family members are suddenly forced to have difficult conversations and make challenging decisions. It is natural that there will be some disagreements.

During this difficult time, it is important that your family works together – not against one another. Failure to get along and openly communicate with your family can make the legal process of pursuing a wrongful death case more challenging.

Negotiating with the insurance company

The at-fault party’s insurance provider may contact you and offer a wrongful death settlement. Keep in mind that the insurer is not on your side and has the goal of getting you to accept as low of an amount as possible. The amount offered will likely be far below the actual value of your claim.

It is important for you and your family not to give an official statement to the insurance company about the death of your loved one. Anything said could be twisted to be used against you, as reason to deny your claim. It is best to hire a wrongful death attorney and let him handle all communication with the insurers.

Failing to hire an attorney

It is not advisable to pursue a wrongful death claim without the aid of an attorney. An attorney can help you avoid any mistakes that could be detrimental to your case and help you maximize your settlement.

Hiring a law firm to represent your wrongful death suit will increase your chances of success and eliminate the anxiety of trying to understand the legal process alone.

Contact Our Wrongful Death Attorneys Today

The compassionate legal team at Minton Law understands that no amount of money can compensate for your loved one’s untimely death. However, a financial settlement can provide you and your family with some financial stability as you try to move forward during these difficult times.

Minton Law has the knowledge and resources needed to build a successful case on your behalf. We have helped many clients recover wrongful death settlements, with some awards worth $1 million or more.

You should not trust just any law firm to handle your wrongful death case. Contact a legal team with a history of success and a trusted reputation. Call us 24/7 at 855-Xadjuster to schedule a free consultation. We serve Little Rock – Pulaski County – Arkansas, Benton – Saline County – Arkansas, and Conway – Faulkner County – Arkansas.

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