A Step-by-Step Guide How to File a Wrongful Death Lawsuit

What is a Wrongful Death Lawsuit?

Wrongful death lawsuits are a very complex and intricate process. They are created by statute, so they are unique in many respects from other personal injury lawsuits.  Recovery in a wrongful death lawsuit can only be pursued by certain individuals, usually close family members. The proceeds of any resolution may be divided between family members even if they do not directly participate in the lawsuit.  It is very important to follow the correct procedures when filing a wrongful death lawsuit to receive proper compensation. The wrongful death lawyers at Monsees & Mayer P.C. can assist you in this extensive and emotionally challenging process.

General Steps to Filing a Wrongful Death Lawsuit

Consult with an Attorney

It is vital to seek legal representation from an experienced wrongful death attorney. Our wrongful death attorneys will access your case and guide you through how to file a wrongful death lawsuit if there is a valid claim. Because there are special procedures throughout the wrongful death-litigation process, only an attorney experienced in navigating these procedures should be retained.  Although wrongful death lawsuits are a creature of state statute, they can be pursued on a host of legal theories. Such as automobile negligence, medical malpractice, product liability, and dangerous premises.

The Investigation

During this time, evidence is gathered to strengthen the case. This may include reviewing accident reports, finding and interviewing witnesses, or reviewing medical records. Many wrongful death lawsuits involve complex issues that require the use of expert witnesses to prove the case.  Finding and hiring such experts early in the process helps the parties suffering the loss and their attorneys fully evaluate the case before it is undertaken. This places the case in a better position to move more smoothly through litigation.

Determine the Liable Party

An individual, business, government entity, or multiple parties could be responsible for the wrongful death. Wrongful death cases can be pursued for a host of legal theories. The defendant may be the operator of a motor vehicle, an owner of real estate, a doctor, or a product manufacturer.  If a corporation is involved, identifying the proper corporate defendant is necessary to make the claim and to legally join the corporation to the lawsuit.

Calculate Damages

Both the economic and non-economic damages are assessed, such as funeral costs, lost income, and pain and suffering. In a wrongful death case, the losses to be recovered are the damages suffered by the survivors for the loss of a loved one.  Hence, how the loss of a person affects the remaining family members is the focus for the proof of damages.  The decedent’s lost income or ability to financially support the family is a key issue.  Other economic losses include contributions the decedent made to serve the household. Such as handyman duties, cooking, cleaning, lawn work, automobile repair, childcare, and educational assistance.

Frequently, expert economists are hired to help calculate the loss of a stream of income previously earned by the decedent, and the economic value of “household services.”  In many instances, the survivors pursuing the case can also sue for the “conscious pain and suffering” or survival damages suffered by the decedent between the onset of injury and death. Such as instances when the decedent lingered for days or weeks after mortal injuries.  The procedure for pursuing such survival damages varies from state to state. Therefore, an attorney experienced in the host of differing procedures is invaluable.

Learn more about what damages are allowed in a wrongful death case.

Draft and File the Complaint

This is when a document containing the facts, allegations, and damages is filed with the appropriate court. A wrongful death attorney will draft this complaint. This complaint or what some call a “petition” contains the basic allegations of wrongdoing and damages.

Serve the Defendant

A defendant in a lawsuit is entitled to notice of the claims being made. A notice of the lawsuit and a copy of the complaint will be served, either personally or by mail, to the defendant in accordance with legal procedures. Such procedures vary from state to state and may vary depending on the nature of the defendant. For instance, is the defendant an individual or a corporation?

Defendant’s Response

The defendant has a specific time to respond to the lawsuit. Many times, this is extended, and it may vary depending on how the defendant is served.  At a minimum, a defendant has 30 days to “answer” the allegations of the lawsuit. Extensions of time are routinely granted, so that the response time to a lawsuit’s allegations may commonly be as much as 60 days after service of process.

Discovery Phase

All parties exchange information, documents, and evidence in the discovery process. Discovery takes place in two forms:  Written and depositions.  Written discovery arrives in the form of interrogatories, requests for production, or requests for admissions.  Your attorney will assist you with responses, but you will be expected to provide basic information that will assist the attorney. Interrogatories are written questions that seek basic information about the decedent and the litigants. Including past medical history of the defendant and employment history. Requests for production seek documents and tangible things, such as medical records.  Requests for admission seek to narrow the contested issues by exploring whether certain issues can be admitted.

Negotiations and Possible Settlement

The wrongful death attorney will work with the defendant to negotiate a fair settlement if possible. Many wrongful death cases are resolved with settlement negotiations. Most cases are now sent to mediation, either by agreement of the parties or by a judge.  Mediation is a settlement negotiation process that is overseen by an impartial mediator who will try to persuade the parties to meet at a middle figure for settlement.  All settlements are compromises, but any settlement is voluntary and requires the agreement of all parties. Whether it is achieved through direct negotiations between the attorneys or with the assistance of a mediator. Wrongful death cases nearly always require the approval of a judge to make sure there are no other claims and to make sure all statutory parties are included in the settlement.

Trial Preparation

The wrongful death attorney will begin prepping the case for trial in the case a settlement cannot be reached. This process takes months and will include depositions of witnesses, and in many cases, the retention and testimony of expert witnesses.


Both sides present their evidence to a judge and/or jury. Your attorney will call witnesses, cross-examine opposing witnesses, and argue the case to the jury.


The judge or jury will deliver a verdict. Special jury instructions will be given by the judge to the jury which your attorney will help craft. This will determine liability and compensation for damages awarded.


Both sides to a lawsuit have the right to appeal an outcome.  This can add months to the overall resolution of a case.  An appeal is not a re-trial of the case.  The losing party will provide information and arguments that the trial judge made mistakes during the case that affected the outcome.  If a party is successful on appeal, there may be another trial.

Enforcement of Judgment

There may need to be steps taken to enforce the obtained judgment and collect compensation for damages from the defendant.

How We Can Help

It is crucial to work with an experienced wrongful death attorney when filing a wrongful death lawsuit. At Monsees & Mayer P.C., we will put in the work to seek compensation for your loved one’s wrongful death. Contact our office today and get help filing your wrongful death lawsuit.