Common Pitfalls in Wrongful Death Cases

00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Today we're going to talk about handling your first wrongful death case. These can be some of the most challenging cases to work on, both from an emotional standpoint and a tactical or strategic standpoint. And as always, to help us talk about this issue is my law partner, Joe Caputo, and one of our top trial lawyers in the firm, Neil Saltman. Hey, guys. 00:41 Speaker 2 Hey, Jack. 00:42 Speaker 1 This topic can be tough because these cases are really difficult on our clients and can also be difficult on the staff and attorneys that work on them. So my first question is, why do you two enjoy working on wrongful death cases? Joe, start with you. 00:59 Speaker 3 Don't get me wrong. You never want something to happen that would force families to call our firm for a wrongful death case. But it's a combination of things that I think first starts with the challenge. These are challenging cases. They're difficult cases because you have to turn over every rock for liability and investigative information, for familial information, for source of recovery information. They're also nuanced as well. And there are these two kind of. And they're not competing interests, but we're helping families that are dealing with some of the most difficult times that they've ever experienced. But sometimes, most importantly, we're getting them answers, and we're trying to see if we can prevent this from happening to others, depending on the situation, sometimes more of one than the other. 01:56 Speaker 3 But that combination of providing the justice and also hopefully preventing this from happening again while having all of these hurdles and challenges put in front of you is, I think, why I think they're the most exciting types of cases that we work on. What about you, Neil? 02:13 Speaker 1 Yes. 02:14 Speaker 2 I mean, I think there's kind of two main things that I look at with these cases. Obviously, it's a terrible thing that's happened for this family, and they're looking for answers. And so the first part, just the opportunity to get to know the family and get to learn all about the person that they lost is just an extremely rewarding part of the job for me is really seeing, and a lot of times, really the best part of the people that were taken away from this family. And the second part, kind of hitting on what you said is they're really just looking for closure, right? And finding out some answers and getting to the bottom of what happened and what can be done. And so kind of helping guide them through that. If you can Provide some of those answers. 02:52 Speaker 2 And sometimes you can't, but when you can, it can be really rewarding. 02:56 Speaker 1 You know, in some of my most rewarding cases that I've had the opportunity to work on are ones where a child has lost a parent because the impact that can make on their lives, especially if the person that was lost was the primary breadwinner of the family. And so you have this double tragedy where someone was killed and now all of a sudden there's significant financial hardship on the other parent and the children. And our ability to ensure that they are going to be taken care of, at least financially, to me is something that gets me up in the morning and lets me work those extra hours at night and be away from my family. And like you said, Neil, I think closure is such an underestimated part of what we do. 03:44 Speaker 1 A lot of times when our clients come to us in these situations, they don't even know what happened. And unfortunately a lot of times law enforcement or first responders don't give them a lot of answers. I can't tell you how many cases where it is. Three, four, five, six months later a client contacts us and they still haven't even been told the basic facts of what occurred, especially if it's a workplace injury type case. And there's some incentives to keep that knowledge away. So I find that part really rewarding, Bill, to tell them the story and so they know what happened. You know, talking about some of the cases where you all feel like you made a difference for a client, Neil, can you think of any cases where you've made a difference involving wrongful death? 04:31 Speaker 2 Yeah, you know, without giving away too much for the family, I think there's been a number of circumstances and a lot of the ones I think that been able to actually make a big difference is where the liability may not have been on the deceased side. And so really kind of getting to the bottom of it and trying to find out who was at fault and really all the responsible parties that we can provide. Kind of back to that closure idea again is one for me there's a particularly challenging one regarding a case where a client was involved in a head on collision. All the facts lined up against us and so we did a complete and full investigation, hired all the accident reconstruction experts, cell phone experts, turned over everything we possibly could and in that instance it ended up not working out. 05:22 Speaker 2 But we still were able to provide some answers and also some compensation for the family, even when it looked like it was a pretty tough case. And so I Think in that particular one, we're able to answer all those questions in that difficult liability scenario and then really help out the family when they're going through a tough time afterwards with some compensation, even if it wasn't that home run verdict that you might hear about, which you can't always provide for the client. 05:49 Speaker 1 Joe, what about you? 05:50 Speaker 3 There are several cases that will always be really close to my heart that I think about when I talk about wrongful death cases. The part about these cases, from small to big cases, that I think always hits home is these cases are night and day different from the other types of cases that we're working on, because we don't have the ability to necessarily get the story from our clients. It involves us getting to know the wrongful death beneficiaries in the family in a way that we're not typically getting to know them. And it requires a lot more work, but it's certainly a lot more rewarding by necessity at first, because we need to be able to tell the family and the client the deceased person's story. 06:43 Speaker 3 But the best part of it is, after we have those successes, I probably have a dozen clients that we've helped in wrongful death cases, whether it's aunts of the deceased or sons or daughters or mothers. And we still send each other Christmas cards every Christmas, and we're still friends on social media, and we'll write messages back and forth. So it's nice seeing the piece that we provided them and some of the resources that we've provided as well, kind. 07:12 Speaker 1 Of across the gamut and to get in some of the specific tactics that we utilize to investigate wrongful death cases versus maybe a typical case. I think one of the number one things that you have to make sure you do is go to the client's house and sit down with the family and really get their biography. One tip that we do is we create a. We call it a CV of the deceased. And it's not just their professional resume, but it goes through their entire life from where they were born, where they lived, early childhood education, and we try to keep it to two pages. And that gives us an idea of their background. Joe, what are some of the things you do to try to investigate the client's background when you're looking into these? 08:01 Speaker 3 Yeah, it's really the most important part. Right. You need to create that cv. But like you said, and I wish I could do this in all of our cases, and we try to, but it's imperative to go to the family's home you see just things that you don't even intend to capture. You get a sense of by going to the home. You know, pictures on the wall, video clippings from home videos. Back when they had VCRs and home videos. But scrapbooks, yearbooks, things that tell the complete picture of this person's life and how the family relates kind of around that life allows you to get a perspective as to how to push the case, what strategy to take, how to show the witnesses that you want to show that are most beneficial and tell the client's story. 08:56 Speaker 3 And so I can think of a case that we worked on a couple years back, Jack, involving a really nice family in Texas. Three brothers and sisters who had parents in their 70s who were killed in a tragic car crash. And we spent two whole days with them, finding out their story, talking to their friends and their neighbors, and creating a Day in the Life video for a couple purposes. Right. It allowed us to connect with the clients, learn their story and find out how to tell it. 09:31 Speaker 3 And then simultaneously, it allowed us to capture that and be able to show some of the highlights that were able to capture ourselves during that time for the defendants or the insurance company or the jury, so that we could showcase and highlight what were seeing in their house and in their community to the people that were ultimately going to make the decision as to how the case went. 09:54 Speaker 1 Yeah, I 100% agree. You know, and another thing that I just thought of when you were talking through that was, I think you want to go out to the scene no matter what, and try to talk to as many people that investigated the incident as you can. We had a case a few years ago involving a fire at a carnival where one of the workers was killed. And the investigation paperwork was very sparse, and it was in a small town. And trying to get information over the phone or through an open records request just wasn't going to cut it. So, you know, actually going out and talking to the investigating officer, talking to nearby employees that were near the location where the fire occurred, going out to the scene allowed us to identify several more witnesses. 10:44 Speaker 1 And you're able to get people to cooperate a little bit more when it's a large tragedy like a wrongful death case opposed to a personal injury matter. Neil, what are some of the things you've picked up on when you're investigating these cases that might be a little different than a typical case? 10:58 Speaker 2 Just to piggyback a little on what y' all were discussing of really getting to know the actual family? But not only Getting the photos, because a lot of times they can just send them out to you, but have the clients actually explain it to you, what they were doing, why they were there. And I think you can really see what drove a person throughout their life when you're getting to hear the actual stories behind the photos versus them just sending you a file to go look through. And so hearing it firsthand, I think, number one, shows them that you care about the person and the family. And two, you get a better feel for who they are so you can better present their story when the time comes. That's a big thing that I think you find there. 11:37 Speaker 2 And then from the liability aspect, like you mentioned, each case is just so different. But just like any other case, whether it be a trucking case or a commercial vehicle or a workplace injury, just really making sure you talk to any potential witness or investigating person to really circle down as best you can, what happened. 11:55 Speaker 3 I always say that when I'm talking about ER doctors, and we love ER doctors, but ER doctors are there to make sure that you're able to walk out of the hospital. And in my opinion, police officers at the scene of a crash, for instance, or are there literally to document what people are saying at the crash. They're not knocking on nearby business doors, obtaining video all the time, or finding out what people in a small community may have heard through the grapevine. And so the advantage for getting some boots on the ground is we can do those types of things. I can think of a couple recent instances. We had a case against an ambulance company a while back, and this. 12:41 Speaker 3 Just looking at reviews online, it seemed that former employees were talking about the crazy shifts that this ambulance company would force their employees, their paramedics to work under. And so we go to the scene of the crash and we go inspect the ambulance. And things that may not have come up in pictures from police, we see with our own two eyes, which is about 24 empty Red Bull Energy cans just sitting there, that really allow us to kind of tell the story that we want to tell, which is we know how the crash happened, but there are things that happened at this company well in advance of the seconds before the crash that led this to happening. 13:30 Speaker 1 You know, and that just got me thinking as well. When you're trying to investigate and find out more about the client, you know, talking to people that went to the funeral, that's a good place to get to know the client's background. I think also getting wedding albums and albums from the family members have. Especially when they typically when someone passes away at a funeral, they'll do some sort of presentation to go through the person's life. That can be great evidence of the type of person they were to really humanize them and bring them to life. Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. 14:18 Speaker 1 Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodfirm.com and we can set up a time to discuss your case. Well, getting into some of the tactics for maybe people who haven't handled a lot of wrongful death cases. So let's walk through procedurally. Who are the clients typically that you are representing in a wrongful death case? Neil, you want to take a stab at that? See if you know the answer to this. If not, you have to get off the podcast right now. 15:05 Speaker 3 Lifeline. 15:05 Speaker 1 Call the Lifeline. 15:07 Speaker 2 So I mean honestly, like in any case, the big thing is to go look at the law. And so the thing about wrongful death law is that it is so nuanced by generally what state you're going to be practicing in. And so take everything with you need to go look. But in a lot of states there's statutory, basically it's laid out through statute of who the wrongful death beneficiaries are going to be. And so generally speaking, you'll most often find it to be a spouse, children or living parents of the deceased or the decedent are the main people you'll find there. And then as well as there's usually a claim made through the estate or also a survival claim. 15:46 Speaker 2 And and so what that would be is for any conscious pain and suffering or medical bills that person may have had while they were still living. And so you have to really look at what the state allows for. Sometimes you have to bring it all through a representative of the estate and then it's split amongst them to the wrongful death beneficiaries. Other times each is an individual claim that can be brought. And so you really just have to look to and look up the law in your particular state to Figure out who it's going to be. But for the most part, you want to be looking at the closest relatives to that person and branch out from there is most likely who the client's going to be. 16:23 Speaker 1 Yeah, I think it's important. We always draw a family tree. And in most states, like Neil was saying, you're going to have the wrongful death beneficiaries are going to be the parents and the children of the decedent, like it is in Texas. And so making sure you also get the documentation, verifying the relationships can be really important. You want to always get birth certificates and death certificates. That can be really critical to proving that relationship. You also want to get marriage certificates, review the family law records to make sure if there's any divorces in the person's background, that you have copies of that so you can prove that up. We had a case, this must have been seven, eight years ago, involving a trucking case where a young man was killed and he had a beautiful little girl with his girlfriend. 17:14 Speaker 1 The little girl was three years old, and he was not married. In Texas, the spouse has a wrongful death claim, and he had lived with his mom and had been raising his child with his girlfriend, but they weren't together anymore, and they hadn't been dating in a long time. And lo and behold, we file a claim on behalf of the child and his parents. Well, now all of a sudden, the girlfriend is claiming she is common law wife with him, which created some really interesting complications in the case. And for those of you that don't know in Texas to be common law married, all you have to prove is that you agreed to be married, you held yourself out to be married, and you cohabitated as husband and wife. And there's no time limit. It literally could be a week, and boom, you're married. 18:06 Speaker 1 Luckily, she didn't have a very strong claim in the case because it was a fraudulent claim. But you really got to be on top of those issues and know who your beneficiaries are. Jill, what are some of the things you've dealt with when it comes to the pitfalls to representing multiple people in a wrongful death case? Let's say, you know, different children or different spouses, and maybe they don't get along. 18:31 Speaker 3 That's a huge potential problem that you want to try to sort out at the start of the case, but that sometimes inevitably leads to a conflict that may need to be resolved. Right. And so these wrongful death beneficiary claims that were talking about in Texas at Least each individual has their own wrongful death beneficiary claim, but that they're all brought together, and they're all brought determined really in terms of value based on the relationship that person has with the decedent. And so oftentimes you're going to be collectively negotiating these claims. And so there are a couple different ways that a conflict or people not getting along can really harm you if you don't get out in front of it. 19:24 Speaker 3 Obviously you hope that when tragedy happens, everybody's on the same page, but it's better to expect something down the line and be cognizant of it than not have it happen. One situation is pretty easy when they don't agree on how to split a set amount of available insurance proceeds. That's probably the biggest hurdle in a case like this. When there's a specific sum of money that insurance has kind of capped you out, there's no assets to go after. You're going to have to figure out ahead of time how to split up those funds. And you're also going to have to make sure that everybody knows how it's going to be split up. 20:04 Speaker 3 But then you also have situations, especially when a will is being probated of family members potentially being upset about what is or isn't in the will and having some ill will, no pun intended, towards some other family members. And then they may not want to communicate openly or with the person that we're co representing or dually representing, or you have to worry about some spite situation where they're so upset that their interests aren't necessarily aligned. At least at our firm, we try to make sure that the clients know. Listen, we can't do this unless everybody's on the same page. We represent all of you equally. That doesn't mean that your case resolves at the same time or that your case is worth the same amount of money. But it's imperative for a bunch of reasons. 20:58 Speaker 3 You don't want to hire an attorney that's going to screw up our plan or make you spend twice as much money doing the same work. And so there are a lot of reasons that we should all be rowing the boat in the same general direction. We just need to make sure that the clients know that up front. 21:17 Speaker 1 Yeah, and one of my things too is if you have a case and it's got minor children and it's the parent of the deceased and you're dealing with, say, the grandparents of the kids, the majority of the money needs to go to the kids. And that's usually a red flag to me if I get approached by a family and say the grandparents want most of the money and the kids are say below 10 years old. It just, that's the purpose of the wrongful death statute, is to help take care of the minor children for the most part. Not saying that the parents don't deserve a percentage of it, but my philosophy is I really think that children deserve the lion's share, especially if they're minors and they lost an adult parent. The other thing is you've got to get ahead of this. 22:02 Speaker 1 You got to know your ethical rules and you can get into a lot of trouble if you're trying to chase money at the expense of your ethical obligations in these cases. And it's always easier to divide up money that you haven't gotten than money once it's on the table. So you want to know the ethical rules and you want to get what's called an aggregate settlement agreement pretty much from the get go with the wrongful death beneficiaries, which describes how the money is going to be divided up if there's limited supply. You know, occasionally you get cases where there's not. There's unlimited source of recovery, but many times that's not the case and you got to get ahead of that. Neil, what are your thoughts on. On that? 22:40 Speaker 2 Yeah, like you mentioned from the very beginning is probably the most important. And so I mean, really, before you can sign them up even, you have to be clear about where that stands and what they need to be expecting. And we talk about all these horror stories, but the majority of the time the families are on board. You know, we've seen it happen where they, you know, kids waive everything to give all the proceeds to their mother. And they say, look, we'll help out whatever we want to, but we want all the money going to our mom to help her out because. Because she lost her spouse. Most of the time it does work out and every once in a while it doesn't. 23:11 Speaker 2 Where there's some tough conversations with family that don't want to be involved or they want to argue about who called more to the person. But overall, like you said, jumping out in front is probably the most important part. 23:23 Speaker 3 And one trick that I know, I think I may have even learned from Neil, is when children, minor children are involved, this is going to require the prove up process to essentially get court approval for how the money's being divvied up. And if you're having difficulty getting family members, including minor claims, in terms of how to aggregately settle the case and what percentage everybody's going to be divvying up to and to whom. 23:53 Speaker 3 Get somebody that works as an ad litem or who you've utilized as an ad litem to kind of serve as a mediator of sorts to help you have your clients understand so that it's not confrontational with you and your clients, but somebody who knows how this works and what a judge is likely to approve and allow and have them and utilize them as a resource to explain how courts view these things and where that settlement in all likelihood needs to go. 24:24 Speaker 1 What about, you know, when the clients come in and you just get the sense, yeah, ethically you could represent them, but you think there's going to be serious problems on them getting along and agreeing on how to proceed? I'm thinking of examples where maybe they've been divorced or they're siblings that just hate each other's guts. And you said, you know what? I don't think I can represent both of them and do a great job. How do you guys handle that with the client that you can't represent and assume we've done everything ethically and we don't already represent both. 24:55 Speaker 2 Yeah. So I think one of the big things there is being up front with the party that you do already represent, assuming you already do represent one of them, explaining why that does make sense. And then you can even let them know, hey, we can't represent. We don't think it's a good idea for us to represent everybody. Here's why. And then, you know, what I'd always say is provide a couple of names of options of other people that we think would be good choices and say, hey, we've seen these other attorneys do good work. Feel free to contact any of them, and if you feel comfortable, you can hire them or hire somebody else. But trying to push them in that direction so that hopefully they can find someone good that can best represent their interests, which they're entitled to as well. 25:35 Speaker 2 So that'd be the way that I would handle that. 25:37 Speaker 3 Yeah, I think that's crucial. Exactly what you said. I would try to find them counsel that we could work with simultaneously. That's going to do a good job. Because our worst fear is working alongside this case that's on the same trajectory. And whoever they decide to hire ends up slowing things down. Or they make the venue option for us that we don't want, and now we're locked in. And so a lot of bad things can happen if they hire counsel that isn't familiar with these cases over anything. I'm making sure that they have counsel that we could work with that's going to do a good job so that our case for the person that we represent isn't going to see any harm from that decision. 26:22 Speaker 1 I tell you what, that is the worst. I don't necessarily mind if there's an incompetent trial lawyer that's representing another party as long as they let us drive. The worst is when you have someone who doesn't know what they're doing that wants to be in charge and you're having to work with them throughout the case and they keep running your case into a tree over and over again, which I've dealt with that too many times to count. Well, final question. What suggestions would you give a new trial lawyer to the practice that wants to get involved in working on wrongful death cases? What tips would you guys give them to trying to get involved with those? 26:58 Speaker 2 At least for trying to get involved, but really doing a good job is just making sure you go through and kind of understand the nuance of where the case can potentially be filed. I think that's extremely important of not only kind of the laws in place of where it happened, but you may have some other options with more favorable venues. There's a lot of different damages you can go get in a wrongful death case, and they vary drastically by state and what venue you're in. And so I think really just making sure if the opportunity comes to when you have the option to work one of those cases, is really figure out the best place for the client and then potentially reach out to other attorneys as well that have a good relationship or expertise in that area. 27:38 Speaker 2 And in that particular venue, I think is extremely important. 27:41 Speaker 3 I would agree. I think you got to start from the charge and look at how you can prove up damages in your wrongful death case so that you are finding information and evidence that supports what you can actually be compensated for. And then the other thing I would tell you is don't be afraid of a story that doesn't sound like it's fully complete, but that may have a couple of pros and cons in it or hills and landslides in terms of a redemption story. All too often we get wrongful death cases with a familial story that isn't a storybook ending. 28:22 Speaker 3 Somebody lost contact or for some reason they're not speaking with their family or they hit a for some reason, whether it was a medical situation, a job situation, there was some part of their life that didn't work out how they would have imagined. I spent the weekend watching in part that two part Tiger documentary on hbo and there's nothing that America likes more than that redemption story. 28:51 Speaker 2 Tigers. 28:52 Speaker 1 This is Tiger King. 28:54 Speaker 3 No, Tiger woods, man. 28:56 Speaker 1 Oh, okay. 28:57 Speaker 3 So it just came out maybe two weeks ago and it's a two part series on hbo and it kind of tells the rise and fall and then the recent re rise of Tiger Woods. And even though our wrongful death case may have ended and that redemptive story didn't work out, in actuality, I still think that we can tell it. And we can tell it by connecting with the family members, talking about what their life was like and figuring out how that redemptive story could have been possible and making the case about that in situations where the facts on their face may not be as appealing as the storybook that you would have written. So that'd be my advice. 29:40 Speaker 1 Yeah. And I would say go offer to work with lawyers that have some of these cases and offer to work for free, you know, or if you get one of these, go team up with a very experienced attorney that can show you the ropes. That's how I learned the first few cases I had. I worked with very experienced attorneys that taught me how these cases worked. I did all of the busy work and tough work and kind of get your hands dirty stuff, and you get great experience that way. So get out there and offer to work for other folks that have a lot of these cases if you want to try to get involved with that. Well, guys, I appreciate your time today. Hopefully you all found this helpful. And until next time, thank you very much. 30:22 Speaker 1 Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. To get notified about new episodes that are upcoming or have been released, go to zdfirm.com/podcast Sign up for our mailing list.