Posted by Bill Sandweg on 22 July 2019.
Most of the cases I handle involve significant and terrible injuries. No case, however, involves more misery and sadness than a wrongful death case.
I never get to meet the deceased person. I meet the loved ones they left behind. As part of my job, I try to bring the person back to life for the defendants and the insurance companies and, if necessary, for the jury. No matter how hard I work, however, the best I or anyone can do is create a pale shadow of the person who has passed. The deceased has left a hole in the lives of those who knew and loved her.
When the time comes to settle a wrongful death case, the family is forced to remember and, to a certain extent, relive the death of the loved one. This makes it a difficult time. However, it is important for the case to end because, in my experience, whatever healing the family will be able to do, they won’t really be able to begin the process until the case is over.
Before we sit down to try and settle the case, I have to help the family understand the process. There are some important rules and considerations. First and most importantly, the process is not about the value of the loved one’s life. No one can place a value on the life of another. That is impossible. Valuing the life of the deceased is not what we do in the settlement process. Instead, what both sides do is try to predict what a jury might do, if faced with the facts of our case. We do this, not because we intend to try the case to a jury, but because that is where it goes if it cannot be settled. We know it and the insurance company knows it. The insurance company will not offer one dime more than it thinks a jury might award. Part of my job is to analyze the strengths and weaknesses of our case and offer an assessment to my clients of what a jury is likely to do.
It is also important that my clients understand that they cannot let the settlement process be clouded by emotion. This is understandably hard for them. But the insurance company on the other side will not be letting itself be influenced by emotion. It will be making cold, unemotional business decisions and the family must do the same or it will be at a disadvantage.
The insurance company has leverage that the family does not and the family needs to recognize this. The insurance company has many cases and makes settlement decisions all the time. The insurance company representatives are experienced professionals. The insurance company can afford to make a mistake in this case. If it does, it can make up for that mistake on the next five or ten or one hundred cases. My clients, however, have only one case. They cannot afford to make a mistake on their one and only case.
Almost every time we get into actual negotiations and the defense makes an offer, my clients will say, “But that is not enough.” I agree that, whatever the defense offers, that amount is not enough. It will never be “enough.” There will never be enough money to bring back the deceased or undo what has been done. On the other hand, asking whether an offer by the other side is “enough” is asking the wrong question. The question should be, “How does the offer compare to what a jury might do?”
Valuing a wrongful death case is never easy. There are many factors that must be considered, including how did the family members do at deposition, how egregious and clear was the conduct of the defendants, are there any skeletons in the closet of the deceased, how did the expert witnesses do at deposition, was there wage loss, what was the overall health of the deceased, and many others. I also have to recognize that juries will sometimes do crazy things but most of the time juries will be in the same general ballpark. There will usually be a range of numbers that the jury will most likely award, if they find for the family. That range is what I call “the zone of reasonability.” If an offer is made that is within that zone or close to it, it should be given serious consideration by the family.
The family needs to understand that in almost every case, there is a chance that the jury will find against them and for the defendants. This is especially true in my medical malpractice wrongful death cases. As bad as the death of the loved one was, it is devastating if the jury comes back in favor of the defendants. It adds insult to injury.
No amount of preparation or advice by me can make the settlement of a wrongful death case easy for the family. It is hard but, if the case can be settled, settlement is good for the family.