Few people ever plan to file a wrongful death lawsuit. While heading to court could seem a very intimidating prospect, pursuing a claim is easier if you have legal representation. By taking the right steps, you could hold a wrongdoer liable for negligence.
Wrongful Death Claims in Virginia
Virginia provides a clear-cut definition of what constitutes a wrongful death. Under Section 8.01-50 of the Virginia Code, a wrongful death is “caused by the wrongful act, neglect, or default” of another person or party. If the circumstances of the deceased person’s death would have permitted them to file a personal injury lawsuit had they survived, their estate is likely eligible to initiate a claim for wrongful death.
Preparing to Initiate a Claim
The Virginia Code restricts who can file a wrongful death lawsuit. Unlike most other states, which allow the deceased person’s living relatives to file a claim, the Old Dominion requires that litigation be initiated by the decedent’s personal representative or executor. This executor might be the person cited in the decedent’s will, someone appointed by the family to represent them, or one of the surviving family members. So, it’s important as you consider a wrongful death lawsuit to work closely with the deceased’s executor as you move forward. There are many things you can do to help prepare for the filing of that claim.
Research the Virginia Statute of Limitations
Virginia has a strict statute of limitations applicable to most wrongful death claims. Typically, the claim must be filed by the executor within two years of the deceased person’s date of death.
While state law provides some exceptions to the statute of limitations, most claims that are not filed within two years will be automatically dismissed by the court.
Be Ready to Verify the Burden of Proof
Wrongful death claims are filed in civil court. While the burden of proof in most civil claims is lower than in criminal cases, the plaintiff must typically prove the at-fault party caused or contributed to the decedent’s death. In Virginia, claimants must be prepared to establish the following:
- The defendant owed the deceased person a legal duty of care.
- The defendant breached their duty of care by acting negligently.
- The defendant’s negligent act resulted in the decedent’s death.
- The court can compensate the deceased person’s estate.
Collect Relevant Evidence
Since wrongful death claims can cost defendants and their insurance companies a lot of money, anyone considering a claim must be prepared to overcome a vigorous defense.
Before your representative files a lawsuit, you should collect all evidence that could be relevant to your claim. This could include:
- A death certificate
- A law enforcement report
- The deceased person’s medical records
- The coroner’s report
- Photographs of the dangerous condition that caused or contributed to the decedent’s death
- Tax returns and other financial records
- Eyewitness statements and contact information
Why You Should Consult an Attorney
You do not need an attorney to file a wrongful death claim, but you likely stand a much better chance of succeeding with competent legal representation. An attorney can investigate your loved one’s death, seek financial compensation, and explain your legal rights.
Since most wrongful death lawyers work on a contingency-fee basis, they do not charge their clients an hourly rate. Instead, they only accept payment as a percentage of the eventual settlement. If your attorney cannot win your case, you will not have to reimburse them for their legal services.
However, before attending your initial consultation with a wrongful death attorney, you should prepare a list of questions. These questions could include the following:
- How long have you been practicing law?
- Who will handle my case—you or someone else?
- What steps do I need to take to file a lawsuit?
- Do you usually settle your cases or take them to trial?
- Do you believe I have a strong case?
- What are your results?
The Law Firm of Kearney, Freeman, Fogarty & Joshi, PLLC has spent decades fighting for the rights of Virginia families. If you have lost a loved one due to negligence, our experienced team of attorneys could help you hold a wrongdoer accountable. Please send us a message online, or call us at 877-652-1553 to schedule your free, no-obligation consultation as soon as possible.