Losing a loved one will never be easy. When you lose a close family member, the grieving process is long and difficult. Many of our clients, however, find that getting justice for their family members is an important step. When an individual dies as a result of the negligent action of another individual, wrongful death lawsuits allow the deceased’s family to recover monetary compensation.
At Moshes Law, we understand that wrongful death cases are about more than money, they are about you, your family, and seeking justice. Our wrongful death practice is organized around this idea, and we are proud to be an important part of our clients’ healing process.
The best wrongful death attorney will understand that he or she is providing more than just legal services to the family. Lawyers for wrongful death cases often develop a close relationship with their clients. They not only help recover monetary compensation, but also help the family navigate the extremely complex process of filing a lawsuit through the estate of their deceased family member. When a family is grieving, the last thing they should have to deal with is the complexities and formalities of the New York legal system.
At Moshes Law, P.C. we pride ourselves on constantly striving to be the best wrongful death lawyers we can be. Our attorneys are compassionate with clients and fierce with insurance companies, seeking justice where it is due. If you have lost a loved one due to the negligence of another, contact an attorney at Moshes Law today for a free consultation.
In simple terms, a wrongful death occurs whenever someone dies as a result of the negligence of another individual. Wrongful death cases are, thus, a subset of negligence law. A negligence case may be brought when four things are found (1) duty, (2) breach, (3) causation, and (4) damages.
Duty means that the negligent person must have owed a duty to the injured person. Duty arises in special situations, such as the duty of a doctor to perform his or her services in a reasonable manner to the patient. Duty also arises, however, to every person you encounter in ordinary life. Generally, you have a duty to act reasonably toward every other person. If you breach this duty, requirement two above, by acting unreasonably, you have breached that duty. Examples of acting unreasonably include speeding, not paying attention while driving, or violating traffic laws.
To find causation, there must be some direct and proximate link between the injury you suffered and the breach of the duty by the negligent person. Generally, this means that absent the negligent individual’s action, you would have not been injured.
A wrongful death case will arise when the injury sustained by the individual was so severe, that death resulted from the negligent behavior. In New York, wrongful death cases are brought against a negligent individual under the New York Estates, Powers, and Trusts Laws. This law allows the deceased individual’s family to recover financial damages for their loss.
In most states, a wrongful death lawsuit will be brought by the deceased’s surviving family members. For example, if a husband dies in a workplace accident, his wife or spouse will likely bring the wrongful death lawsuit. Children may also bring wrongful death lawsuits if they have lost their parents.
The rules are different in New York, however. In New York, a wrongful death lawsuit must be brought only by the personal representative of the deceased’s estate. The estate is the legal entity created to handle and dispose of the deceased’s property after his or her death. The personal representative is the individual chosen by the will or by the court to represent the estate. Generally, this will be a close family member, such as a spouse or child.
Our representation is comprehensive, meaning that our attorneys will handle every aspect of your wrongful death case, from initiating and overseeing the legal proceedings to gathering evidence and negotiating a settlement. While we let our clients be as active in this process as they wish, we typically find that most clients are genuinely interested in the progression of their case.
The process of filing the complaint initiates the lawsuit. The complaint typically contains a minimal amount of information showing that there was a duty, breach, causation, and damages. This will generally describe how the deceased died, who was at fault, and the legal theories underlying the action, such as a brief description of the actions taken by the defendant and how those were negligent. Once the lawsuit is filed with the court, it must be served on the defendant by a process server, which our office will arrange.
It is important to note that the lawsuit must be brought within the statute of limitations, which for wrongful death in New York, is generally two years from the death. If you are approaching this deadline, it is important that you contact an attorney as soon as possible.
The evidence gathering phase of the lawsuit is called discovery. During discovery, the parties will utilize a number of discovery mechanisms to obtain information from the other party. These include the following:
In the discovery stage, the parties are required by the court to submit this information to the other side. While certain documents and information can be hard to obtain prior to filing a lawsuit, if a party refuses to answer a question during discovery, the court can compel them to do so.
Once discovery is complete and all relevant information is known by both sides, the Defendant will often file a motion for summary judgment. In this motion, they will assert a legal defense and use the information found in discovery to provide why the case should be dismissed. For example, it may be found in discovery that the deceased failed to take his or her medication that day, causing them to be in an altered state. The Defendant may argue that the cause of the death was due to their failure to take their medication, and not the Defendant’s actions.
The wrongful death attorney will then submit a response to the motion to summary judgment, describing while the defense is insufficient. For example, if the injury was caused by an accident unrelated to the deceased, such as someone running a red light, it is unlikely that his or her medication caused the accident. These types of defenses, attacking the deceased’s actions, are brought in nearly every wrongful death lawsuit. Wrongful death attorneys must be prepared to anticipate and respond to these challenges.
Most wrongful death cases settle out of court through negotiation. This is because it is often cheaper for defendants to settle, rather than go through litigation and discovery. Also, the defendant may be worried about being found liable at trial. If you are able to settle out of court, the defendant generally does not admit liability for the injury, allowing the defendant to save face and its reputation.
Negotiations are never done with the defendant directly, but rather through the law firm hired by the defendant’s insurance company. Insurance attorneys have one goal in mind – to settle for as little as possible as quickly as possible.
At Moshes Law, P.C., our attorneys are experts at negotiating with insurance attorneys, because we do so on a daily basis. Because most of our cases settle out of court, we specialize in negotiation strategies and put most of our effort into obtaining large settlements. We know the insurance lawyers’ tricks and anticipate their bluffs. If you think that you may be eligible to file a wrongful death lawsuit on behalf of a family member, contact the Moshes Law Firm today for a free case evaluation.
While reaching a settlement is oftentimes preferred for all parties, sometimes the parties simply cannot agree. In that case, a jury trial may be the only option. An effective wrongful death attorney must be willing to fight for his or her client inside the courtroom, in addition to the office. While trials generally last only a day or two, they require months of preparation and practice. If a trial is inevitable, our attorneys will handle the entire process, from finding and deposing expert witnesses to preparing and presenting exhibits.
Our attorneys have successfully litigated all types of wrongful death cases for our clients. We have helped clients recover in numerous cases, including the following:
The type of damages for wrongful death lawsuits are limited by law in New York. New York law states that wrongful death damages must be “fair and just” damages for the pecuniary injuries suffered. There are typically two categories of damages that may be recovered in a wrongful death lawsuit. These are economic and non-economic damages.
Economic damages are just that – the economic expenses suffered by the deceased’s estate and his or her family. These damages will compense items such as funeral costs and medical bills paid prior to the deceased’s death. While these are easy to calculate, economic losses can also include other economic items, such as loss of financial support for the family. For example, if the deceased was the main provider for the family, his death means that his family may go without income for some time. Economic damages may be utilized to cover these lost wages for the family.
Non-economic losses are compensation for things that were not paid out of pocket. These typically include things such as pain and suffering and loss of companionship by the surviving family and or spouse. These types of damages are, unfortunately, very difficult to determine. Because of that, they are generally utilized only in the most egregious of cases, where the individual’s death was gresoume, untimely, or the defendant was severely negligent.
Law firms in New York typically handle wrongful death cases on a contingency basis. This means that if you do not win your lawsuit, the attorney does not charge a fee. By law, New York limits the types of fees that an attorney may collect. The fee can be at most, either ⅓ of the net or total proceeds from the case, depending on whether the attorney or the client pays the out of pocket expenses for the lawsuit.
At the Moshes Law Firm, our attorneys have helped hundreds of families through the litigation process. Our attorneys understand that we are doing more than just filing paperwork, we are helping families seek justice for their loved ones. For that reason, our attorneys do everything we can to make the process simple. We handle every aspect of the case, from filing the lawsuit to collecting the payment, and our attorneys are available day or night to talk.
If you think you may have a wrongful death claim, but are worried about the cost, the Moshes Law Firm can help you. We offer our clients a no fee guarantee, meaning that if we take your case on a contingency basis and do not recover, you will not be charged a single dollar.
While we can tell you that we will fight day and night for your case, we believe that our best advocates are our former clients. This is because most of our business does, in fact, come from referrals from our previous clients. We have hundreds of client testimonials to prove that we truly do put our clients first.
Economic damages in wrongful death cases are the easiest to calculate, as they are typically out of pocket damages. Non-economic damages and damages such as lost wages, however, are more difficult. Oftentimes attorneys will utilize accepted formulas or experts to calculate damages.
Wrongful death lawsuits are typically brought on a contingency basis. This means that either the lawyer or the client will pay for the costs of litigation, such as filing fees and hiring experts. Once a settlement is reached, the attorney will take a share as his or her fee.
Wrongful death cases are a subset of negligence law. This means that to prove the defendant is liable for the death, you generally must prove that the defendant acted negligence, and that negligence caused the death of another.
The statute of limitations for wrongful death in New York is two years. This means you have two years from the date of the death to file a lawsuit.
Whether you should go to trial or settle out of court depends on the facts of the situation. Typically, settling is the better route, as this will keep the costs of filing and litigating the lawsuit low.
If you are searching for a New York wrongful death attorney, look no further than the Law Offices of Yuriy Moshes. While most attorneys avoid clients and never return calls, our attorneys pride themselves on developing close relationships with our clients.
This is because our dedicated and compassionate attorneys always take a client-centric approach to providing legal services. If your loved one has died as a result of the negligence of another, contact the Moshes Law Firm today for a free legal consultation.