Wrongful Death Made Right  

wrongful death lawyerSetting aside all of the legal mechanics involved, let’s discuss what the purpose of a wrongful death lawsuit is. Most people understand the concept of consequences, and a wrongful death lawsuit is something that is probably best discussed in that context. From childhood, it is society, our parents, or other influences in our lives that instill in us the basic, formative idea that what we do, or fail to do, can have consequences. But why should someone suffer consequences for an accident? After all, it was just an accident. Shouldn’t everyone involved just offer their prayers and try and do better next time? That is an easy thing to say when it is someone else who has suffered the loss of a loved one to an accident. But more to the point, this type of “let bygones be bygones” thinking implies that consequences are akin to punishment. However, this is a common misconception.  Merriam Webster’s Dictionary defines consequence as “something produced by a cause or necessarily following from a set of conditions.” On the other hand, punishment is defined as “suffering, pain, or loss that serves as retribution.” Clearly, these two things are not the same. The law does not punish individuals for accidents, except under rare and egregious circumstances that involve concepts for another blog. The law does, however, provide a standard of care one must meet while conducting activities. And when someone falls below that standard, causing another harm or death, what “necessarily follow[s]” is the fundamental idea that that person must make the situation right.

Our civil justice system is modeled around that belief: we must make right our wrongs. Hence, the word accident implies much more than just an unfortunate, unintended occurrence, or even an opportunity to learn from our mistakes. When death is a result, an accident means there is something lost. If a lawsuit has been filed as a wrongful death in Texas, it invariably means that there are family members (a spouse, parents, or children of the deceased) that no longer have the opportunity to enjoy the company of their deceased loved one. It means that every benefit that the deceased family member provided―every aid, every assistance, whether in the form of mowing the lawn, paying a portion of the utility bills, washing dishes, giving advice about where to go to school and what to be when one grows up―is forever gone. This is what remains un-replaced, even after the prayers are said and the showering of love and support ceases. This is what must be made right.

So what is the best way to replace these things? How do we make it right? This is the part where we are going to have to talk about money. Perhaps this is what makes some individuals uncomfortable with the idea of a wrongful death lawsuit. Paying money to console the bereaved family of the deceased gives some pause. Those who fit into this category might be benefitted by pondering the following scenario: Imagine a young boy accidentally breaks your neighbor’s window during an innocent game of baseball and refuses to make the situation right by paying to replace your neighbor’s window. Would the boy’s refusal provoke a sense of injustice in you? Of course. No one among us (who is sane) is completely without a sense of what it means to make something right, even when what occurs is the result of an accident. However, in the context of a wrongful death, the thing to be replaced is not a window or other property. It might not even be something tangible. Nonetheless, the losses experienced by the surviving family members is very real, and it can endure for a lifetime. Therefore, the best and only way we know to reduce the pain and suffering associated with the loss is to offset that loss by offering to the surviving family member sufficient monies to replace, as best we can, the benefits, advice, counsel, and companionship that the deceased once provided. This is how we make it right.  

Think again for a moment about the broken window scenario above. Do you think that the neighbor would be provided greater relief if the boy’s mother gave the neighbor permission to spank the boy in public for a minute straight for breaking his window? Given that the nature of the boy’s conduct was accidental, this seems rather harsh. The better choice, of course, is to make it right: replace the window. It does the neighbor no lasting good to wail on the poor boy for a minute, nor would doing so make the boy any less prone to accidents, or serve to teach him what it means to rectify a situation meaningfully. Sometimes we lose sight of this basic distinction between punishment and consequences, especially when there are lawyers and a lawsuit involved. However, a skilled wrongful death attorney should be able to sit down with his or her client and, depending on the specific facts of the case, discuss the types of things that can be replaced. He or she will be able to overcome the hurdles the client will inevitably face when trying to tell her story to a jury who may not even want to be listening. All of this can be challenging and will require a deep understanding of how people function, what provokes justice in them, and how they can be made to care about the client and his or her loss.

Thanks to our friends and contributors from the Law Offices of Ramon Garcia for their insight into wrongful death.