Clergy are often the first people consulted after someone has lost a loved one due to the carelessness of another. They provide critical guidance to people in an unbearably painful and vulnerable time of need. There are five main things clergy members should know about their congregation members involved in wrongful death cases:
- Losing a loved one is always painful. When the beloved dies due to the carelessness of another, that pain is often amplified because of the injustice. The survivors often suffer from psychotic breaks or turn to drugs and alcohol to ease the pain. This is a critical time for the clergy to step in and provide solace and relief to the family in their time of suffering and to provide spiritual guidance so that the survivors deal with the pain in a healthy way. Many people who lose a loved one prematurely go through a crisis of faith that they can best overcome with the guidance of a responsible leader. If handled with care, the bond between the clergy member and the survivors can become a lifeline for the family. From a legal perspective, clergy members often become our clients’ best witnesses in the wrongful death case. On the other hand, anything said to you as a clergy member in your capacity as a spiritual advisor is considered privileged communication. You do not have to disclose it to anyone unless you choose to do so for the benefit of the survivor.
- Evidence of the survivors’ damages in a wrongful death case begins accumulating as soon as the survivors learn about the loss. Everything that happens immediately thereafter becomes a story that is told to insurance carriers and sometimes to juries to illustrate the severity of your congregation member’s loss. I highly recommend recording and photographing any testimonies from the survivors to the congregation because those recordings and photographs often provide critical evidence in the wrongful death case. If the surviving family member has a wrongful death attorney, the attorney can pay for the recording and photography, as long as it’s used for legal purposes.
- I strongly recommend you make contemporaneous notes or log your communications with the survivors in a journal in case you are called as a witness in the case. Journal entries can serve as powerful evidence that helps the jury understand the survivor’s struggles due to the loss of their beloved. They will help you remember details about conversations and observations you had about the survivor as they were going through the healing process and will allow you to testify with confidence if the occasion arises. Again, the journal entries are privileged and cannot be disclosed unless you choose to do so. Even if you are called as a witness, you cannot be forced to disclose confidential communications. You simply invoke the privilege bestowed by Florida Evidence Code 90.505:
90.505 Privilege with respect to communications to clergy.—
(1) For the purposes of this section:
(a) A “member of the clergy” is a priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.
(b) A communication between a member of the clergy and a person is “confidential” if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.
(2) A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.
(3) The privilege may be claimed by:
(a) The person.
(b) The guardian or conservator of a person.
(c) The personal representative of a deceased person.
(d) The member of the clergy, on behalf of the person. The member of the clergy’s authority to do so is presumed in the absence of evidence to the contrary.
- A congregation member or the personal representative of the estate in a wrongful death case has the privilege to prevent a clergy member from disclosing confidential communication. However, as a member of the clergy, you are presumed to have the authority to disclose confidential communications as you choose, absent evidence to the contrary. In other words, unless you have a specific request to keep the communication confidential, you have the freedom to disclose it. Here is the specific language addressing this in the evidence code:
(2) A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.
(3) The privilege may be claimed by:
(a) The person.
(b) The guardian or conservator of a person.
(c) The personal representative of a deceased person.
(d) The member of the clergy, on behalf of the person. The member of the clergy’s authority to do so is presumed in the absence of evidence to the contrary.
- Often the last thing your congregation member wants to do when dealing with the loss of a loved one is to consult a lawyer. This is completely understandable. However, it’s very important for the survivors of a wrongful death to have the guidance of an experienced wrongful death attorney as soon as possible. There are many pitfalls that survivors should avoid, such as posting on social media or starting a Go Fund Me Campaign. Those actions could seriously harm the prospects of the wrongful death case. If your congregation members’ beloved died due to the carelessness of another, it would be wise to encourage them to seek legal counsel immediately.
If you have any questions or need further guidance, please feel free to call me anytime at (850)777-7777.
Sincerely,
Jimmy Fasig
Wrongful Death Attorney
Fasig Brooks Law Offices
(850)777-7777
