Wrongful death cases are not like other cases. The vast majority of damages in a wrongful death case come from the mental pain and suffering of the survivors. Yes, you can claim funeral expenses, medical bills, and lost net accumulations, but in most cases, the bulk of the verdict or settlement comes from compensating the survivors for their mental pain and suffering. For that reason, it’s extremely important to hire a lawyer who understands the nuances of proving to a jury the value of a mental pain and suffering claim. Although most wrongful death cases settle out of court, the best settlements arise when the lawyers involved are ready and able to take the case to court if the defendant or the insurance carrier doesn’t want to pay the claim fairly. In order to maximize the value of a wrongful death case in court, the lawyer should start from the beginning with a game plan for how to prove the mental pain and suffering element of damages.
The public policy behind Florida’s Wrongful Death act is to shift the loss from the survivors of a wrongful death to the wrongdoer who caused the death. This is extremely important for a lawyer to understand and convey because jurors are much more inclined to punish wrongdoing than to compensate victims of negligence. One issue trial lawyers face is a disconnect between awarding survivors a large sum of money and the idea of losing a loved one. During focus groups and mock trials where we watch jurors deliberate in wrongful death cases, it’s common to hear a juror say, “No amount of money is going to bring their son back.” This statement is true, but it’s irrelevant to the issues the jurors should consider. The jurors need to feel that awarding a large amount of money makes sense. When they think of it in terms of shifting the loss to the wrongdoer, it starts to make more sense.
The other public policy consideration a lawyer should convey is the idea of making the victim whole. The disconnect between awarding large sums of money for the loss of a loved one can be overcome when considering that the victims of a wrongful death have lost something of great value. The loss of a loved one is one of the worst losses a human being can suffer. Florida law requires the jury to award an amount of money that compensates the survivors for their mental pain and suffering. Life comes down to a series of moments. Some moments are joyful and others are painful. When someone comes along and, through their negligence, takes away some of those joyful moments and replaces them with painful ones, they have taken away something of value, something the survivor will never get back.
Most survivors of a wrongful death feel cheated by the carelessness of the defendant. They have lost a big part of themselves, and the law requires they be made whole to the greatest extent possible through monetary damages. The only way to do that is to measure the full magnitude of the survivors’ loss in terms of how much mental pain and suffering they have endured and will continue to endure for the rest of their lives. In most cases, the loss is so great that only a huge sum of money will make up for it to the greatest extent possible, as the law requires. Many survivors of a wrongful death have had their lives destroyed in the sense that the entire future they had envisioned for themselves has been eradicated, and they have to start from scratch. Much of what they had planned for their lives will never come to fruition in the way they wanted because of the absence of a key player in their life. Money can make their lives more comfortable and provide relief to the survivors as they work to rebuild their lives and reshape their visions for the future.
The best way to present a wrongful death case to a defendant, an insurance company, or a jury, is to show what the survivors lost through the power of short stories. Human beings are compelled by stories. That’s why we watch television and read books for entertainment. When I represent a client for a wrongful death, I ask them to write a journal, and in that journal, I ask them to write down memories that are meaningful to them. I can later use that journal and those memories to put together a story that is compelling and meaningful for the people involved in determining the value of the case, whether it be an insurance carrier, a corporate defendant, or a jury. If the case ends up in a jury trial, the jury needs to know that they are writing a single chapter in the story, but the survivor of a wrongful death still has to live with the loss of their loved one for the rest of their lives, so the story is not over.
The best thing the jury can do is show by their verdict that they understand the severity of the suffering the survivors endured by including an amount of money that reflects the full magnitude of their suffering in their verdict. If justice is to prevail, when the survivors walk out of the courtroom, the relief they feel from hearing the jury verdict should equal the dread they felt when they found out about the death of their loved one to the greatest extent possible. Most often, wrongful death survivors are shocked by the news of the loss of their loved one. For that reason, in most cases, the amount of money on the verdict form must be so shocking that one can fairly say it equals the amount of pain and suffering the survivors of a wrongful death endured, and not a penny less.
