Many factors play into the timing of filing a wrongful death lawsuit. Consultation with an attorney, like a wrongful death lawyer, is critical to understand the many components that need to come together to accomplish this filing. Before a wrongful death suit can be filed, a right to file must be requested from and approved of by the court. This process is generally accomplished by filing an estate action in probate court. In the case of split custody of a child, the court may determine which parent can rightfully bring the action. For a married adult, the next-of-kin is generally the spouse. For a deceased, unmarried adult determining the next-of-kin is accomplished by reviewing the statutes of the state in which the person lived. Frequently, a personal injury attorney will have an associate in the office who can take on this process or will make a recommendation to a probate attorney with whom the lawyer is familiar. Once standing is established, a wrongful death action can proceed.
Attorneys are in the best position to determine when to make the actual lawsuit filing. While court systems are well established throughout our nation and the process can be generally outlined, each lawsuit is its own unique experience. Attorneys invest many hours into each wrongful death case, investigating the events and searching all available insurance coverage and personal or business assets from which monetary compensation can be sought. Attorneys also know the areas in which they live and understand how the actions of a plaintiff may be interpreted by a jury. In more conservative jurisdictions, an attorney may believe it is best to file an action soon after the death. In more liberal locations, a decision may be made to hold off on filing if there are active settlement negotiations underway. There are some occasions when an attorney will prepare a lawsuit and deliver it to potential defendants before filing it with the court. These decisions are strategic in nature and an experienced attorney will be able to predict with a relatively high degree of accuracy how each of these actions will be viewed and interpreted by a future jury.
Every state also implements its own statute of limitations for filing a wrongful death action; this is the timeframe in which an action must be filed with the court or the right to sue is lost. If Uncle Bob in Idaho tells you that a lawsuit for wrongful death has to be filed in three years, the first question to ask is whether Uncle Bob is a lawyer. If, in fact, Uncle Bob is a lawyer then the second question is whether or not the deceased was also a resident of Idaho and whether or not the cause of death occurred in Idaho. Keep in mind, the State of Idaho sets its own statute of limitations, but Idaho doesn’t make laws or rules for the states of Missouri, Florida or California. Uncle Bob may be a great guy and a wonderful resource in many areas, but if he isn’t a practicing attorney, licensed in the necessary state(s), then Uncle Bob is not the right person to obtain advice from when it comes to filing a wrongful death lawsuit.
At the Injury Law Education Center (ILEC), our primary goal is to provide easy to understand, accessible information for victims of personal injury who have little or no experience with the legal system. Contact us, today!