I’ve handled, investigated, and analyzed many wrongful death cases, including deaths from structure fire, drowning, bicyclists hit by cars, persons killed by drunk drivers, negligently driven semi-truck accidents that resulted in a person dying, and road construction designs that caused automobile accident deaths. The suddenness of the event, and the shock to the family, can leave them reeling from the loss, and uncertain of how to proceed with handling the loved one’s estate, and any potential wrongful death claim.
If you find yourself in the position of having lost a loved one, it is understandably hard to take action when you are mourning; it is difficult to reason about legal issues when your heart has been crushed. I want to offer some advice that you may find surprising. Think of the issue like this: you need relief, you need time to think about the loss, and you need to be able to grieve.
If you take the time to consult with an attorney, you will feel better that you have taken action for your loved one. If you retain an attorney, you will have a weight taken off your shoulders. In short, understanding the legal issues, and taking action is therapeutic.
Generally speaking, an action for wrongful death must commence within three years “after the injury causing the death of the decedent is discovered, or reasonably should have been discovered…” ORS 30.020. But is important to understand that far more prompt action is the prudent course. For example, if the case is against a public body, then Tort Claim Notice must be sent within one year of the loss. ORS 30.275. Failure to send that notice can cause the claim to extinguish as a matter of law.
It is also not well known that the lawsuit for wrongful death is brought on behalf of the decedent’s estate by the personal representative. That means that an estate must be opened in the probate court, and a personal representative named by the court. In some counties, the court will require the personal representative to complete a fiduciary education course before issuing the letters of administration. Opening the probate and getting the personal representative on board takes time that could affect the ability to handle the wrongful death claim in the best possible manner.
Another issue to consider, that bears on why prompt action is important, is the issue of evidence. In many cases, immediate action is necessary to discover and preserve the evidence necessary to establish a meritorious case. One example is fire cases. In these types of cases, my firm hires experts immediately to get to the scene and examine the evidence. State and county investigators are typically not sufficient. You need experts who care about the case from your perspective, not the public bodies’ perspective.
Finally, be wary of the attorney who is overly sympathetic. Yes, when you are grieving, an attorney who understands what you are going through is important, but a lawyer who can’t keep her eye on the ball is not going to help you in the long run. You need an objective, hard-charging, experienced attorney, and not necessarily someone who is merely able to express a tenderness that you relate to during a time of grief.
You need to select an attorney who is going to zealously investigate the case and work to find compensation to cover the needs of dependents. Trust me when I say that the moment you hire the right attorney, you will feel relief, and know that you have acted in the best interests of the decedent’s loved ones.