Death is Different


One of the most difficult types of cases that any attorney must face is the one that involves a sudden, violent accidental death. Sudden unexpected violent death often results in Complicated Bereavement. As attorneys, we must be knowledgeable about the psychological impact of death to the surviving family members. If our intent is to win their case, we must be sensitive to their experiences and needs as grievers. In order to address the emotional and psychological consequences of a wrongful death case, it is important to advise survivors to obtain counseling by a therapist who specializes in grief and trauma therapy. Grief is the emotional reaction to loss. "Grief work" must be done by survivors in order to process the loss of a valued family member, and to resolve conflicts which are the result of major changes that become necessary to reorganize life in the present. In a sudden violent death the reactions are intensified; symptoms reveal greater similarity to posttraumatic stress syndrome; and the client may be diagnosed as experiencing Complicated Bereavement.

We see complicated bereavement when loved ones die suddenly in a violent manner, such as in automobile crashes, accidents, drownings, homicide, suicide, airplane crashes, bombings, floods or any other unexpected manner. The emotional responses that have been documented in research include: cognitive dissonance, the inability to think clearly; disbelief and murderous impulses; conflict in one's values and belief system; a sense of powerlessness and loss of control; sense of fear and vulnerability; survival guilt; anger that borders on rage; and emotional withdrawal. The bereavement is not only more complex, it can take five to ten years before the survivors report their life reorganized to pre-morbid functioning.

The survivor can no longer think or feel he is in a safe world, and no matter how many plans he has for his future, they have been shattered in a moment. He was powerless to prevent the tragedy and must search for a cause in order for it to make sense. This search for a reason, and someone to blame, as well as one's own inability to control life and protect loved ones, is the very basis of the anger, murderous impulses and rage. None of these emotions are either familiar, desired or easily accepted as one's own. The survivor no longer knows who he is and feels powerless to change. This frequently leads to emotional withdrawal from all support systems.

Unless an attorney is a specialist in wrongful death cases, he or she will only see a few, if any, in their career. The technical legal demands of the case are different from all other torts. The case must be handled with expertise, both from an emotional and technical standpoint, or it may be lost prior to the opportunity for presentation.

Attorneys can expect a wrongful death case to be stressful. The attorney must be prepared to be the brunt of some emotional outbursts and deal with what may appear to be irrational behavior of grieving survivors. The attorney can become exhausted, worn out and angered by such clients and project anger themselves. Grievers frequently displace their anger and attack those who are trying to help them.

Communication patterns that have been practiced for years may be totally disrupted when an important family member or the head of the household dies. Attorneys must be aware of how "this family" operates in order to avoid being in the middle of a family battle about "who was called," "when," and "why wasn't I told?" In the first meeting with the surviving family members, we need to ask who will be selected to deal directly with the attorney and therapist's office. To avoid future problems, request that the selected spokesperson communicate all relevant material to each of the other concerned survivors, and obtain this as part of the obligations and responsibilities of this position.

The lawyer must be emotionally, spiritually and physically fit to deal with the stress often associated with being so close to human tragedy and wrongful death. We need to expect angry responses to surface when clearly preventable negligence causes death. It is the emotion of anger within the survivor that prevents a sense of inner deadness and gives the griever the power to act in the present. The problem with anger is how it is expressed and acted out by survivors. In every family there are well meaning advisors, particularly for the recent widow or widower. With passions running high, the most aggressive advisors may suggest courses of action that are highly inappropriate in the management of the case.

Encouraged by caring relatives, a father in a fit of painful despair and rage trashed the defective child safety seat that led to the death of his child. The attorney was not told until two months later that this vital evidence had been destroyed! There are many well-meaning relatives and friends who unwittingly diminish and obstruct the family's legal rights. The attorney must always caution the family immediately concerning preserving evidence, to make sure that painful emotions do not eradicate reason.

A major rule in dealing with the emotional side of a wrongful death case is to expect the unexpected. Grief is as individual as each person's fingerprints. Some survivors who may appear on the surface to be unemotional and "taking it well" are some of the most affected of all. In one case, the mother of a very tough fifteen-year-old girl was killed. When the girl was put on the witness stand to testify, she broke down and was unable to speak a word - not even her deceased mother's name. Her tense and terrible silence became the most powerful testimony in the case. I let the silence roll over the jury; no one missed the power of the silence that personified the child's rage and despair at losing her mother.

When the case finally concludes, it is no longer a living reminder of the deceased. You may well witness a "second funeral". Survivors are angered that money is the only representative of their loss, as though that could ever be a replacement for their loved one.

They experience the guilt-provoking act of accepting money damages and shame, that, as part of society, we put a price on life. It is helpful to explain that all we have as a form of punishment for negligence is money. There is no way that we can ever, in a legal, social, or moral sense, truly equate dollars to the value of the deceased loved one's life.

Part lI -Technical Aspects

The technical legal demands of a wrongful death case are different from all other torts. Since such a small percentage of torts involve a wrongful death, attorneys frequently have little opportunity to obtain experience with this type of case. These cases are often difficult to manage even for the most seasoned attorney. It is important to avoid the mistake of treating a death case the same way as an injury case. If a death is caused by the negligent acts of another person or business, then the state's Wrongful Death Act applies, giving the estate certain rights. The estate can recover the loss of support and services on behalf of the defined beneficiaries. It can also recover the loss of net income accumulations. The case needs to be signed up as soon as possible after the death occurs and must be filed within the defined two-year statute of limitations.

Among the most important legal actions to take first are: to launch an immediate investigation into the facts surrounding the death, to preserve the evidence and to find witnesses. It is important to employ the services of an expert investigator and photographic professional to preserve the evidence and acquire immediate photographs of the scene. Remember, since physical evidence is perishable and memories fade, time is of the essence.

It is critical and fundamental to have an autopsy performed. The autopsy will rule out other possible causes of death while creating a factual basis to support your theory of causation. When religious beliefs of the surviving family prevent autopsy, you must make the effort to explain to the family the critical importance of preserving evidence. The autopsy provides indisputable medical information and facts that often can be gained no other way. Assure them that the deceased body will be treated with respect.

Later, in working with the family, they may request to see the autopsy report and the photos taken of the deceased body. We need to use discretion when the body has been badly burned or severely mutilated; however, in most instances this information needs to be shared. To tell a client that they cannot see these reports invalidates their rights to knowledge. Clients who do not seek this information do not need to have it forced upon them, and in trial need to be forewarned that they are free to leave the courtroom when this evidence is presented. However, many survivors seek this information as a way to understand the reality of what occurred.

The autopsy report is best reviewed with the client's therapist present. The therapist can assist with the emotional reactions experienced by the client. When the survivor did not have the opportunity to view the body of the deceased loved one prior to burial or cremation, photos taken by the medical examiner's office may clarify many false impressions for the survivors. It is important for the attorney and therapist to review the photos prior to this session, so that they are presented in order of those showing the least damage to more severe. The photos showing greater damage to the body are the last to be shown. Those who have previewed the photos prior to trial, in the presence of a sensitive attorney and therapist, are much better prepared for court.

We strongly advise that the attorney or a staff member attend the funeral. It is important whenever possible to photograph or have the funeral videotaped. The pictures or videotape have powerful symbolism and can prove to be important evidence. However, this may or may not be admissible in court according to the ruling by the judge in the case. The funeral will bring close family members together. Caring relatives may recommend that the survivors take a long trip to recuperate, losing valuable time to begin the case and preventing the collection of important evidence. Or they may recommend that the survivor take a few months to think about what needs to be done about the tragedy before contacting an attorney. This is also a critical error which almost certainly allows crucial evidence to be lost. An advisor may also, in an attempt to help the griever, instruct the survivor to take a precipitous action like throwing away all recent photographs or destroying or trashing intimate objects that were involved in the tragedy. It is not uncommon for survivors to throw crucial evidence away because it is a reminder of the cause of death. Under these circumstances, the appointed attorney has a duty to take the leadership role in advising survivors as to what is in their best interests.

Part III - Emotional Choices

After you sign the case up, you choose a "face for the case," who is the Personal Representative who will sit at the counsel table during the trial if the case goes to court. This need not necessarily be the family spokesperson, but should be a primary survivor under the Wrongful Death Act who is free of significant problems on cross exam such as a complicated psychiatric history or criminal record. The choice of a personal representative is a crucial decision.

A wrongful death typically creates a powerful ripple effect that runs throughout a family. The attorney in a wrongful death case is required to notify and identify all potential beneficiaries allowed and defined by the wrongful death statute. This needs to be accomplished in the first interviews with the family.

The attorney will have to make strategic decisions as to who to include or exclude as a beneficiary. Those survivors who think they may have rights as a beneficiary-and according to the law, do not-can become highly emotional and indignant when they learn they are precluded from being allowed to sue and recover damages for the death of their loved one. This can pose a problem to the attorney. Some attorneys have made the mistake of telling all members of the family that they are beneficiaries under the Wrongful Death Act. It is difficult to correct this false representation, and it has the potential to create a nightmare of emotions, both for the undesignated beneficiaries and the attorney.

The attorney is required to plead all the defined beneficiaries, or they will be barred from their fair share of any settlement once the case is over. The lawyer could be held liable in a separate suit if you leave out a beneficiary who is later barred from any of the recovery. Except for medical malpractice cases where the beneficiary (other than the spouse or parent) has to be under 25, there is no longer any age limitation under the wrongful death statute. A widowed spouse needs to be informed that if one remarries before the wrongful death claim is completed, the new marriage is specifically admissible into the case to mitigate damages.

As attorneys, we may easily trigger real anger and resentment toward ourselves and staff if we intrude into the most personal aspects of a surviving family's life. Frequently, anger is displaced to those who are in close proximity and who are the least responsible for the tragedy. There may be difficulty later in prosecuting the case when a survivor has lashed out in an angry outburst at helping professionals, such as police officers, medical personnel or prosecutors who have investigated the circumstances surrounding the death. The majority of emergency workers, including physicians, nurses and other medical personnel, have been trained to understand the need for expressions of anger and are not offended. In fact, they often expect angry attacks by grief-stricken survivors. However, if untrained, these professionals could take the attack personally and become alienated.

Professionals who have been on the scene have proven to provide some of the best testimony and assistance in a civil case. It is to our advantage to encourage education for emergency workers and law enforcement in this critical area of care. In one case, a survivor who called a police officer "an idiot," put that epithet in his notes and it became the theme of the defense case. Until we are educated about the normal responses of anger and the need for this emotional expression by trauma survivors, we may find professionals who take the attack personally and will do minimal requirements when working on the case.

I believe that grief therapy is important to the successful prosecution of the case and encourage my clients to assist me, and their case, by seeking the psychological services of a certified grief therapist. As the case unfolds, many problems are prevented when the psychological suffering and raw emotional pain of survivors has been lessened through their own efforts in therapy. Those who work through their grief in therapy are better able to deal with the tragedy, are better witnesses and present more powerful testimony in court.

When the case finally concludes, survivors, whom you expected to be appreciative and relieved at the outcome, may display confusion. Those who have worked with a grief counselor may have less expectations of immediate relief, which is more realistic. At the end of the case, my final recommendation is for the family to seek the services of a reliable, highly qualified financial counselor.

"The game of life is not so much in holding a good hand as playing a poor hand well. "
H. T. LESLIE