There is no way to be prepared to receive news of the unexpected loss of a loved one. Not only is the family left suffering tremendous grief, but they may also be left with a significant financial burden. The medical bills along with funeral and burial expenses that result from a wrongful death can be quite significant.
If the cause of someone’s death was due to negligence, family members may rightly pursue a wrongful death lawsuit. This can give family members a measure of justice for their loved ones and help defray the heavy financial costs that resulted from the wrongful death. But should a family accept a settlement for a wrongful death lawsuit, or should they go to a jury trial?
What Constitutes a Wrongful Death in Arkansas?
Arkansas law defines wrongful death as a wrongful act, neglect, or default that causes the death of another person (§ 16-62-102). The negligent or wrongful deed could be a criminal act, a fatal accident, or even medical malpractice on the part of a person, company, or government entity such as a municipality.
In normal personal injury cases, the injured party can pursue compensation from the at-fault party for damages suffered. However, since the victim in a wrongful death case has died, the question arises: Who can pursue wrongful death compensation for the deceased person?
Who can file a wrongful death claim in Arkansas?
In Arkansas, it is only the personal representative of the deceased’s estate who can initiate a wrongful death claim. If the deceased had not appointed a representative, then the surviving heirs may initiate the claim.
The heirs would include close family members such as the spouse, children, parents, or siblings. If none of the above heirs survive the deceased, then a person who is standing in, or to whom the deceased stood in, loco parentis (“in the place of a parent”) could file a wrongful death claim.
Once a wrongful death claim has been filed, compensatory damages can be granted either by settlement or by trial.
Types of compensation for a wrongful death
The law in Arkansas entitles the estate of the deceased and his or her beneficiaries to receive wrongful death compensation for specific damages. Knowing the types of damages the family is entitled to receive can impact the final decision to pursue a settlement in or out of the courtroom.
The estate and family may be compensated for:
- Funeral bills and burial costs
- Medical bills
- Lost wages and future earnings of the deceased
- The deceased’s pain and suffering prior to death
The surviving family wants, and may even need, the money they are entitled to receive. Thus, it’s a wise decision for the representative of the estate or the family to speak with a trustworthy lawyer before initiating a wrongful death lawsuit.
An experienced attorney knows how the legal system works, and he or she will know how to gather as much evidence as possible to strengthen your wrongful death lawsuit. Also, your lawyer should be able to tell whether a satisfactory settlement can be reached or if it is likely to be obtained in the courtroom.
Pursuing the Path of a Wrongful Death Settlement
A wrongful death settlement occurs when all parties involved reach an agreement without going to trial. Your wrongful death lawyer will attempt to negotiate a wrongful death compensation settlement with the insurance company of all liable parties.
If a satisfactory settlement offer for wrongful death compensation from all at-fault parties can be reached, your lawyer may recommend that you settle the claim – which has certain advantages and disadvantages. The following highlights some of these pros and cons.
Advantages of pursuing a settlement out of court
One of the best advantages of wrongful death settlements is that they are generally faster and less expensive than going to court. When a wrongful death lawsuit goes to court, there is extensive legal paperwork to be prepared and filed, which can substantially increase costs.
Additionally, trials can take many months or even years. However, in some cases, a settlement can be reached within weeks or just a few months.
Another advantage of an out-of-court settlement is having a predictable outcome. When a wrongful death case goes to trial, the verdict is decided by a judge or jury, which could be favorable or unfavorable. However, with a signed settlement, the family is aware of the amount of wrongful death compensation since they will agree to it.
Another benefit of a settlement is that families are afforded more privacy. This means that the details of a wrongful death case can remain private after the case is settled. But if the case goes to trial, there is a risk of potentially sensitive information being disclosed to the public since legal proceedings are made public.
What’s more, wrongful death cases that wind up in a courtroom tend to be more stressful than wrongful death cases settled out of court. This is because of all the emotional preparation and activity related to the trial that the family may have to undergo. You may be better able to avoid high levels of stress by settling your claim out of court.
Disadvantages of pursuing a settlement out of court
One disadvantage of settling out of court is the chance of receiving less compensation. Although settlements may offer a quicker path to resolve wrongful death claims, it is likely that the agreed amount for compensation will be lower than if the case went to trial – nevertheless, going to trial is not always worth it.
For example, in cases where the at-fault party’s insurance limit is lower, a trial may be an option to obtain damages at a higher amount.
In other cases, evidence that could potentially affect the amount of compensation might not be discovered until a much later time from the incident. However, once the family agrees to a settlement, they waive their right to any possibility of pursuing further compensation for losses.
Dealing with difficult insurance companies is another major disadvantage of settlement negotiations. Insurance companies have adjusters on hand who are skillful at getting claimants to agree to a lower amount and settle the claim. One of their key tactics is taking a long time to respond to your attorney’s attempts to negotiate a fair settlement. Such a tactic would cause a delay in the entire process – until your time runs out.
Pursuing the Path of a Wrongful Death Civil Trial
If a wrongful death claim cannot be settled for a fair amount of compensation, then the case must go to trial with the family as the plaintiff and the accused as the defendant. This means that the facts of the case will be heard in court, and a judge or jury will decide the outcome.
There are some advantages and disadvantages of a wrongful death case being settled in a courtroom setting. Although not comprehensive, consider the following pros and cons listed here.
Advantages of pursuing a trial
Insurance companies have limits, and their adjusters will try to offer settlement amounts based on those limits. Unfortunately, those amounts may be considerably less than what might be a fair amount of compensation. In pursuing a wrongful death case in court, it is possible that the judge or jury may award a fair compensation amount that exceeds the limits of insurance companies.
In addition to receiving compensation for the loss of their loved one, a trial may allow the family to receive monetary punitive damages. Different from compensatory damages, punitive damages, which can be especially sizable, are awarded to punish the defendant for his or her reckless or negligent behavior and to deter potential future offenders.
If the family of the victim wins its case, the defendant will be held publicly accountable since trials are public records. Having the defendant’s actions and punishment exposed to the public would give every family member a sense of justice and closure.
If the wrongful death trial results in an unfavorable decision, then the family may decide to make an appeal. This means that the facts of the case would be heard by a higher court that would decide whether the lower had erred in its decision.
Disadvantages of pursuing a trial
In Arkansas, when a wrongful death case goes to trial, it could take many months or even years to be resolved. Either party has the right to appeal if they are not satisfied with the decision of the judge or jury. This could result in the family suffering financial strains while awaiting a final resolution.
Wrongful death lawsuits that end up in court will most certainly have higher costs than wrongful death lawsuits settled out of court. This is due to all of the legal fees that would be involved, including the attorney costs for the increased amount of legal work.
In order to receive a favorable outcome, the evidence of the defendant’s negligence would have to be clearly proven. This may include the family listening to details of the event, giving testimony, and being cross-examined by the opposing attorney. All of this could put a great amount of stress on the family.
There is a measure of risk when pursuing compensation for wrongful death in the courts. It is quite possible that the family may either be awarded a larger amount of compensation for their loss or else end up with nothing at all. If the judge decides not to include some evidence or the jury gets a distorted perception of the facts, this could negatively affect the outcome of your case.
Either Way, Hiring an Experienced Wrongful Death Lawyer is the Best Way to Go
Since every wrongful death case is unique, it would not be a good idea to pursue a wrongful death lawsuit on your own. The first step you should take is to speak with an experienced wrongful death attorney. A lawyer who has experience with handling wrongful death cases would know how best to begin the process.
Your wrongful death lawyer would make sure to file any legally time-sensitive forms and documents accordingly. Also, he or she would be familiar with and know how to combat any tactics that insurance company adjusters may use to try to settle the claim for a lower amount.
Further, your wrongful death attorney would know how to aggressively argue your wrongful death lawsuit in court to get you the maximum amount of wrongful death compensation.
The wrongful death attorneys at the Minton Law Firm have years of experience in handling personal injury lawsuits, including wrongful death cases. So contact Minton Law’s wrongful death lawyers – serving the areas of Little Rock, Benton, and Conway in Arkansas – today.
Call us at 855-Xadjuster or online for a free consultation regarding your claim. If we don’t recover financial compensation for you, you don’t owe us a dime.