Most non-lawyers have an extremely distorted view of exactly what happens during any lawsuit, and particularly something as significant as a wrongful death lawsuit. They have learned most of what they know about courtroom proceedings from watching fictionalized one-hour dramas on television or, at best, three-hour dramatic movie productions. Neither of those resources provide accurate depictions of what really happens during a wrongful death lawsuit.
As an Orlando wrongful death lawyer, I want people who call to understand what will happen in their case. So I always spend whatever time is needed explaining how the entire process will work.
Wrongful Death Lawsuits Primarily “Happen” On a Computer Or Behind A Desk
I have been thinking about just how much of a serious lawsuit takes place at the keyboard. Undoubtedly, attorneys in serious cases spend far more time sitting at their desk working on those cases than anywhere else, factoring in preparation for relatively infrequent live events together with extensive written argument-based documents, which both sides must file long before trial, and which often decide many critical issues regarding the case, including numerous documents that can either get your case dismissed before you get any where near a jury (even “with prejudice,” which means that you cannot ever file again) or seriously curtail the strength of your case. Indeed, since most cases settle (or get dismissed) before trial, you really might want to take the time to understand the lengthy pre-trial process involved in your potential case before you make any attorney hiring decision.
Wrongful death lawsuits are generally long ordeals for everyone involved, clients and attorneys alike. Cases may be resolved within a year or two, but they can take several more years, and the attorneys spend those years working on these important documents, along with witness and evidence examination. The actual trial is also a major undertaking for everyone involved, but again many cases never reach trial, and the trial itself might last only a few days or weeks. That time is a relative drop in the bucket compared to the intensive pre-trial phase.
Pre-Suit Investigation And Research
When you first hire your attorney, he or she will begin the initial phase of the case, which is an investigation of all of the underlying facts in great detail. This may include speaking with you and other relatives or associates of the deceased about various things related to liability and/or potential damages in the case. He or she may also seek the opinion of experts regarding the potential viability of the claim (such as accident reconstruction experts, if an auto accident was involved, or medical experts, which are required pre-suit by statute in medical malpractice wrongful death cases). If the defendant had a potentially applicable insurance policy, then the attorney will notify the insurance carrier that he or she represents you, and request a copy of that policy. Upon receipt, your attorney usually will study the various provisions, because insurance policies are long, complicated documents, they are rarely the same from carrier to carrier, and single words or phrases in the policy itself can mean success or failure when it comes to whether your potential claim is subject to any insurance coverage.
Legal Research Necessary Early And Throughout Any Wrongful Death Lawsuit
Then the attorney might even have to consult an extensive body of case law to determine whether the policy covers the particular situation (only in questionable coverage situations, but these are not rare). Cases are hard to explain to non-lawyers. I’ve been trying to explain their applicability and depth/complexity to my husband for the entire 14 years since I’ve known him, but so far I still do not think even he really understands. So I probably cannot convey the complexity of the legal research that should take place in your case. But (trying) the reality is that statutes in Florida are just the beginning of the “law” that might apply to your case. Judges interpret how those statutes apply to various factual scenarios in specific cases (because it would be impossible to craft a statute on virtually any complex topic that covered any and all situations). Many of those judicial interpretations regarding individual cases are published in volumes of books that measure in the hundreds (at least) just in Florida alone. Each individual case might be anywhere from a single page to fifty or more pages. So, regarding literally hundreds of potential issues in your case, your attorney theoretically could and often does consult with case law to assist with written arguments or strategic planning in your case. These issues could range from which people can sue, to where they can sue, to who they can sue, to the elements of claims in their cases, to what damages might be available, to all sorts of other critical evidentiary and procedural issues. And legal research and legal arguments are not obvious, nor are attorneys even remotely created equal when it comes to preparing these critically important components of every case. So, in any event, one of the first potential hot spots for research is whether the policy even covers the event involved.
Pre-Suit Negotiations in Wrongful Death Lawsuits
Once the Orlando wrongful death attorney is convinced that your potential claim is viable (or reasonably viable because often these issues cannot be determined with certainty), then they prepare a demand package for submission to the insurance company if there is coverage or potential coverage. This begins a pre-suit settlement negotiation process, which often leads no where in bigger cases, although early settlement is possible if liability is extremely clear. (There is a slightly different and unusual statutory pre-suit process in medical malpractice cases, which I will not be discussing in this article.) If the pre-suit negotiation fails, then your attorney must prepare the initial documents to file a lawsuit on your behalf.
Filing Your Complaint Officially Begins Your Wrongful Death Lawsuit
The next phase involves telling your story factually in a document called a “complaint.” The complaint is a formal document, which is served on the defendant or defendants, and filed with the court. This document triggers a duty on the part of the defendant to respond within a set time-frame with a document called an “answer” or another optional document called a “motion to dismiss.” A motion to dismiss asks the court to dismiss your complaint and can be based on a large number of complex issues beyond the scope of this discussion. Sometimes if the judge denies these motions, the defendant might even have a basis for an immediate (“interlocutory”) appeal. And during the pendency of any appeal, your case at the trial court level may or may not be “stayed” (meaning put on hold). If the case is stayed, this tactical yet sometimes unavoidable maneuver alone can take many months.
Wrongful Death Lawsuits Are Not The Wild Wild West
Another common misconception is that attorneys are completely surprised by all of the evidence presented in court. Although this certainly can happen, attorneys on both sides often learn about the most important evidence long before trial. Our justice system long ago developed a process called “discovery,” which was designed to give each side an opportunity to fully explore all of the evidence that might be presented by the other side during trial.
Discovery involves many methods of obtaining any relevant evidence, including things like interrogatories (written questions from one side to another), requests for production of documents (written requests for documents that might be relevant in the case), requests for admissions (written requests that one party admit any individual fact of the case in a “true or false” fashion), and depositions (verbal questions and answers between the attorney for one side (who asks the questions) and a party or witness for the other side (who answers the questions)). Discovery may also involve numerous objections to these requests (very common in all cases) and then corresponding “motions to compel” (documents whereby an attorney asks the judge to require the other side to turn over some potentially relevant evidence during discovery). Attorneys can also seek a wide variety of sanctions against the other side for particularly onerous discovery violations. During this phase of the wrongful death lawsuit, your attorney will be crafting all of these various lengthy documents, which involve crafting questions and requests based on the unique facts of your particular case. Your attorney will also be reviewing any responses to discovery, considering whether any motions should be filed to obtain more information or documents, planning deposition questions (as well as deciding who to depose), and talking to experts, who are also subject to the discovery process and also must be qualified to testify as experts, yet another lengthy and complex process.
Over The Hump: Motions For Summary Judgment
Another critical phase of the lawsuit is when the defendant files a document called a “motion for summary judgment.” These are not filed in all cases, but when they are filed, they are important. These are basically documents filed by either party asking the judge to rule decisively on any given issue, and correspondingly take that power away from the jury. Often defendants file these motions asking the judge to dismiss the case entirely. And sometimes the judge grants these motions and cases are dismissed. The reasons why a case might be dismissed is yet another extraordinarily complex issue, but the simple reason is that you do not satisfy the elements of the claim for one reason or another. At some point, I might blog about this issue, but really understanding a motion for summary judgment would probably require three years of law school. Plaintiffs attorneys again consult the extensive body of case law, together with statutes, and the facts of the individual cases, to craft unique, often lengthy replies to these motions. Then they attend a hearing and the judge rules one way or another. (And again sometimes the defendant can file an interlocutory appeal if they lose their motion and believe they have a basis for this type of appeal during the lawsuit.)
Moving Closer To Trial
If you survive a motion for summary judgment, the very general rule of thumb for both sides is that the assessed settlement value of your case will increase. You now have the right to have your case heard by a jury. All attorneys know that juries can do pretty much whatever they want (with some limitations) and can be unpredictable (although your attorney plays a role in jury selection, yet another critical aspect of your case). So defense attorneys faced with the prospect of letting a jury decide begin considering settlement more seriously.
At the same time, the parties begin more intense trial preparation, which continues to involve both extensive factual and legal research. Witnesses are consulted, documents studied, and trial exhibits begin to take shape. If either side is concerned about any particular evidentiary issue, then they can file another motion (or series of motions) called a “motion in limine.” Motions in limine basically ask the judge to rule on whether any particular piece of evidence will be admissible during trial. These can be very critical components to making your strongest arguments in court, and yet again they involve extensive study and written argument.
The Weeks Before Trial
Many cases settle during this phase. At the same time, attorneys are often doing little other than preparing for trial, honing their planned arguments, and getting ready for game day.
Game Day (Or Days Or Weeks)
If you have watched Court TV, or ever participated as a witness or party in any other lawsuit, then you may be more familiar with the actual trial (although still fictionalized courtrooms do not give accurate depictions of what happens during any trial). After a lengthy jury selection process, which involves exploring the mindset of the jurors, the attorneys give opening statements (the content of which is limited by rules and cases), then examine and cross-examine the parties and witnesses for both sides. In the background (outside the presence of the jury) the attorneys are often still filing motions asking the judge to admit or exclude various pieces of evidence and also trying to persuade the judge to give various jury instructions, again based on case law and any potentially applicable statutes. The attorneys also may file motions asking the court to direct a verdict their favor, which is similar to a motion for summary judgment but happens in the middle of the trial. When every witness and party has had their day in court, the attorneys give closing statements, and the jury finally begins their deliberation.
After The Verdict
Attorneys at this phase can still file motions asking the judge for a verdict in their favor (“notwithstanding” the jury verdict), which again is similar in effect to a motion for summary judgment. Other motions may also be filed. Critically, attorneys at this phase may appeal verdicts. And there may be several levels of potential appeals depending on the issues in the case. These appeals can substantially lengthen the time frame of the case. Therefore, defense attorneys can use these tactically to frustrate withe the hopes of breaking already exhausted plaintiffs. As you can hopefully see, having fortitude and determination for justice is critical throughout all phases of any wrongful death lawsuit for this very reason. And hiring an attorney who will prepare extensively throughout all phases of pre-trial and trial is equally essential.