4 Reasons to Hire a Lawyer Immediately after a Wrongful Death and Why you Don’t have to Worry about making a mistake
By Brian Hebert
I wrote this article after seeing news of yet another fatal injury in our Province. I was particularly saddened because the victim was a fellow cyclist and just a teenager.
It’s very difficult to focus on anything immediately after the death of someone you love. The grief is unbearable and all of a sudden there is so much to do: contacting the rest if the family, contacting g friends, preparing an obituary, making funeral arrangements, making insurance claims for funeral expenses, making visitation arrangements.
I know the last thing on your mind is hiring a lawyer. But based on my 26 years’ experience as a lawyer, that’s exactly what you need to do in order to protect the rights of every family member who was dependent on the person that died.
Here are four reasons why you need to retain a lawyer, any lawyer, as soon as possible and why you don’t have to worry about selecting the wrong lawyer at first.
The first reason to retain a lawyer as soon as possible, is the preservation of evidence. The police will likely be conducting an investigation, but if it doesn’t look like a crime was committed, the investigation may be limited. The police may not preserve all of the evidence you will need to prove who was at fault in a non-criminal trial. Police may even conclude that your loved one was at fault.
However, evidence may exist that is beyond the expertise of the investigating officers – defects in the vehicle or the highway that might point to the car manufacturer, the city or the Province who maintained the roads.
A lawyer can retain an independent investigator right away and retain an accident reconstruction expert in the right case. The lawyer can take steps to make sure evidence is not destroyed – even accidently.
The lawyer can do all of this from behind the scenes while you carry on as best you can.
The second reason to hire a lawyer right away is to get advice on who to speak to about the accident and what to say. In an auto accident you will deal with your own No-Fault insurer, but the insurer for the other driver may also try to contact you. So might the police and the medical examiner.
Statements made can be used in court to try to point the blame at your loved one or to minimize the compensation your family is entitled to.
Your lawyer will help you decide who to speak to and what to say. Until you have spoken to a lawyer, any lawyer, don’t speak to anyone in authority.
The third reason to hire a lawyer right away is to make sure no deadlines are missed. As soon as you retain a lawyer, that lawyer has a responsibility to determine how long you have to start a lawsuit to protect your family’s rights. While everyone hopes that an out of court settlement is reached at some point, it will take some time to gather the information needed to support your family’s claim. In the meantime, if the time limit for filing a claim expires before you file a lawsuit on behalf of your family, your family may lose its right to compensation.
In wrongful death cases legal action may have to be taken in as little as 10 months following death.
The fourth and final reason to hire a lawyer right away is so that you can have your many legal questions answered by a qualified lawyer taking into account the circumstances of your family’s case. Searching the internet for information may be useful but is general and usually not tailored to your family’s unique situation.
Any lawyer better than no lawyer?
I know what you’re wondering. I did say hire a lawyer “any lawyer” as soon as possible. But you are thinking that some lawyers are better than others, just as some doctors, dentists, plumbers and waiters are better at what they do. You’re right.
Having a good lawyer is essential when it comes to the compensation part of the claim. I will explain why in a minute and it may take time to make an informed decision as to the right lawyer. In the meantime, as I said above, you need a lawyer to intervene right away. I firmly believe that any lawyer is better than no lawyer at the start of the case.
Time for careful consideration
However, as soon as things have settled down you need to re-evaluate your legal representation with a clear head, long before it’s time to settle your family’s case.
There are two reasons for this.
First, your family will only get one chance at full compensation. If you sign off on a settlement your family gives up its right to any further compensation. Period. The same thing when you go to trial – the decision is final. You cannot start a new law suit for more compensation if the funds run out. So the stakes are high.
Second, and you will not find this written anywhere else, the amount of compensation you will receive depends upon what your lawyer thinks your family deserves and not what you are entitled to. Why? The truth is that in our legal system there generally are no fixed amounts of compensation except in Worker’s compensation cases. Some exceptions exist, such as the fixed grievance awards in Alberta and two other Provinces. Even in those provinces, other aspects of compensation are not pre-determined.
The reality is that each case depends on the unique circumstances of the case and so there have been a large range of court decisions in cases which on the surface appear very similar. A lawyer can advise settlement over a large range and still be “right”. It is easier to settle at the lower amounts of course. It also takes more work and more skill to get to the higher end of the range.
Much depends on whether the lawyer is prepared and able to take the case all the way to trial (especially to a jury trial). Lawyers who always settle get lower settlement offers. Lawyers who take cases to trial get more respect from insurance companies and other judges. The ones that are prepared to fight all the way will ask and receive higher settlement offers.
If you don’t ask for it, you won’t get it
This was brought home to me in a case early in my career. I was representing a client survivor of childhood sexual abuse. I had made a fair settlement offer that was higher than in many reported cases and only lowered the offer when my client instructed me to settle rather than go to court. We reached a tentative settlement agreement with the other side. However, my client was nervous. I was a young lawyer and my client’s friend had recently settled a similar claim against the same institutional abuser. My client told me frankly that he did not want to settle and then find out that his friend had received more than him because he had hired a senior higher-profile lawyer.
Understanding my client’s dilemma but also knowing that the other lawyer could not reveal his client’s settlement because of solicitor client privilege, I called the more senior lawyer and told him how much my client had been offered. The other lawyer blurted out: “I didn’t even ask for that much!”
My client was happy and took the offer. I learned a valuable lesson that I have not seen in writing anywhere before or after: the amount a victim or their family will receive depends on their own lawyer’s belief in the case.
Compensation for wrongful death has been kept low by the courts historically, but the amounts some cases have settled for might shock the average person. You need the best help you can get.
Since it’s so important to have the right lawyer settle your case or take it trial, why did I say hire “any lawyer” right away?
Well for the reasons I mentioned above I firmly believe that you need to hire a lawyer right away. Hopefully you will shop around initially and hire the right lawyer from the beginning. But for emotional or other reasons, your first choice may not be the right one. Luckily, the time for settlement or trial is months if not years down the road. There will be plenty of time to re-evaluate your choice of lawyer before then. In fact you should always be evaluating your lawyer’s performance as the case proceeds and this is especially important when you hired someone quickly following the death of the person you loved.
“But are there costs in changing lawyers?”
Not if you do it right. Your lawyer will have asked you to sign a contingency fee agreement. A typical contingency fee agreement provides that if you dismiss the lawyer you will have to pay for the legal services provided to date at the lawyer’s hourly rate. However, and again this is something you will not find in writing, if you have a good claim, other lawyers will be happy to represent you and will agree to look after the first lawyer’s fees so you don’t have to.
You should always bring any concerns you have about a lawyer to the attention of the lawyer that is assisting you. However, if you decide to look around, approach the other lawyers first. Your visit with them is confidential and they cannot alert the other lawyer of your visit. You may find you like your first lawyer more and decide to stay with him or her.
If you do decide to switch, reach an agreement with the new lawyer first that all fees and costs incurred by the first lawyer will be taken care of by the new firm. Get it in writing. The new lawyer will take care of the rest, including letting the first lawyer that his or her services will not be needed and arranging to get the file transferred.