When Should You Hire a Wrongful Death Attorney?

wrongful death attorney

The United States experiences 250,000 yearly deaths due to medical errors. An additional 38,000+ people die in road accidents, and more than 4,000 people die due to workplace injuries.

It can happen to anyone, someone makes a mistake resulting in an accident and a loved one dies. The event leaves you emotionally distraught. If you or others are dependent on the deceased person’s income, you have a financial loss.

This is when you need a wrongful death attorney. If you aren’t sure what wrongful death attorneys do or when to hire one, keep reading. We are going to share everything you need to know about hiring a wrongful death attorney in California.

What Constitutes a Wrongful Death Claim?

Wrongful death refers to a person that may be liable for the death of another person. Relatives of the deceased may file a civil action to receive compensation for their loss. The plaintiff must meet a standard of proof showing the defendant’s actions led to the death of another person.  

Wrongful death lawsuits may result from a variety of incidents including:

  • Medical malpractice
  • Vehicular Manslaughter
  • Careless driving
  • Assault and Battery
  • Death in the course of a crime
  • Manufacturer defect causing death
  • Negligent behavior

When a person dies in a car accident, causes of wrongful death claims include reckless driving, negligent driving, drunk driving, or distracted driving. A pharmaceutical drug company may be liable for death if they do advise about the side effects of a drug or advise about fatal drug interactions. Medical malpractice includes misdiagnosis, treatment errors, mistakes in surgery, and failure to diagnose.

Who Can File?

Wrongful death lawsuits may be filed by those persons listed in the California Code of Civil Procedure § 337.60.

  • Spouse, domestic partner, children of the deceased, or others entitled to the property in intestate succession
  • Parents of the deceased
  • Putative spouse, putative children, or stepchildren if dependent on the deceased

A lawsuit may be filed by a minor residing in the deceased person’s home for 180 days prior to death. They must be dependent on the decedent for at least 50% of their support. 

Statute of Limitations

The statute of limitations sets the amount of time you have to file a lawsuit. In California, you have two years to file a lawsuit from the date of death. If your claim is against a government agency, you only have six months following the incident.

Once the time limit to file a lawsuit runs out you no longer have a valid legal claim. Wrongful death attorneys are familiar with the statute of limitations. They will file your lawsuit prior to the deadline and include all necessary elements in the pleadings.

Elements of Wrongful Death

The elements a plaintiff needs to prove in a wrongful death lawsuit are equivalent to those that must be shown for negligence in a personal injury case. You must list every element in the pleadings. Statements must show how the actions of the defendant fulfill that element.


The first element is to prove the defendant owed a duty to the plaintiff. For example, in a car accident, they owe a duty to operate their vehicle in a safe and prudent manner. In a lawsuit against a product manufacturer, they owe a duty to the consumer or user to produce a product that is safe to operate.

Breach of Duty

You must show the defendant’s breach of their duty. In an auto accident, it may be driving at excessive speed and because of that action, they were in a collision causing death. For the product manufacturer, it may be that a person’s death is due to their failure to produce a safe product.


You must show that the defendant’s breach of duty was the direct and proximate cause of the plaintiff’s family member dying. For example, the defendant failed to operate their vehicle in a safe and prudent manner when driving it at speeds exceeding the legal limit, resulting in their being unable to stop safely, resulting in the death of the plaintiff’s spouse.


Damages are the loss you incur because of the defendant’s actions. You must list these at the end of each count in your lawsuit, but not give an exact amount. Your final prayer for relief will request a minimum figure that incorporates all damages.

This allows the judge or jury an open-ended opportunity to award you additional compensation for areas where a fixed dollar amount is not attachable, such as loss of consortium.

Why You Need a Wrongful Death Attorney

The best wrongful death attorney will be familiar with proving a wrongful death lawsuit. They will be familiar with writing a lawsuit complaint and conducting discovery to prove your case. 

Once you file the lawsuit the party you are suing will likely have an attorney represent them. Your injury attorney will negotiate to obtain the best settlement. If expert witnesses are necessary to prove your case, they will have the knowledge on how to locate professionals who meet court expert witness requirements.

Your wrongful death attorney will be familiar with court procedures. After filing a lawsuit there are several court appearances. This includes settlement hearings, mediation, motions, pre-trial, and the trial.

Throughout the entire legal process, there are specific steps necessary to meet court requirements. If you work without an attorney, you will need to comply with the California Rules of the Court and California Rules of Civil Procedure. A mistake or missed deadline can result in dismissal.

If you reach an out-of-court settlement, your wrongful death attorney will carefully prepare the settlement documents, making sure you receive everything agreed to. The settlement document or court order following trial establishes your award and the defendant’s obligation to pay.

What You Can Receive

Your wrongful death attorney has the knowledge and experience to determine the overall impact the person’s death has on your family. When negotiating your claim or presenting the facts in court, your attorney takes into consideration the following:

  • Loss of income
  • Loss of potential earnings
  • Loss of consortium/companionship
  • Loss of protection, guidance, and inheritance
  • Medical expenses
  • Funeral and burial expenses
  • Emotional distress and pain

The overall amount of compensation the family receives usually includes economic damages, non-economic damages, and punitive damages.

Wrongful Death Attorney Fees

When you hire a wrongful death attorney, they handle your case on a contingency fee. This means you pay nothing unless they win your case.

You will sign a contract confirming you are hiring them to represent you. It will show the percentage of your winnings the attorney receives for their fees. In California, this is usually 30% to 40%.

After your case settles your attorney will receive your award. They will deduct their attorney fees from the award. They will then subtract any expenses or costs, such as court filing fees, transcript fees, and expert witness fees.

Your attorney will issue you a check for the remaining funds.

The Best Wrongful Death Attorney

When a loved one dies in an accident, schedule a consultation with a Sweet Lawyers wrongful death attorney. Our consultations are 100% free and you pay nothing unless we win your case.

Use our online form or call 1-800-674-7854 to schedule your consultation.

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