The Wrongful Death Case Process in Massachusetts Courts

We have been involved in lawsuits for wrongful death cases since 1985.   This page is to give clients and prospective clients an overview of how a wrongful death case in Massachusetts courts works.

First, unlike a regular civil case, we need an executor of the estate.  This can be the person designated in the will, or, if there is no will or the will can not be found immediately, we can apply to the court to have an administrator of the estate found.  Once we file the initial estate papers and the Probate Court appoints the executor or administrator, we have a “client” we can file claims on behalf of.  This Probate paperwork is not complicated at the outset, however, it involves numerous steps and they can necessitate a probate attorney and perhaps a certified public accountant.  Our office either undertakes the paperwork or recommends a firm to do the Probate work if it becomes complicated.  We can also work with a probate attorney already retained.

Second, like all civil cases, we need to immediately focus on liability, or what lawyers call negligence.  There are multiple functions the Massachusetts wrongful death attorney will perform at this stage.  They include, but are not limited to, securing ambulance and medical records, locating and taking photographs, finding state or federal agencies  (such as the police or OSHA) that have completed studies of the facts in this instant case, researching other similar events or the parties involved.  For this stage of the case, it is critical that we gather as much information as soon as possible; our main witness, the victim, is deceased, and others are not necessarily going to remember the facts or secure the photographs and documents.

This second phase often involves locating and retaining expert witnesses.  This could be a physician, a collision expert, an economist or some other expert in his or her field needed to prove negligence.

Third, we focus on being able to prove all damages to the deceased and to his or her family.  There are several elements to wrongful death damages in Massachusetts.  Damages include the following:

Economic or easy to calculate damages

–    medical bills from the time of the incident to death
–    funeral expenses
–    loss of earning capacity, including benefits to dependents

Non-economic losses

–    conscious pain and suffering of the decedent
–    loss of society and companionship to the family and dependents
–    loss of consortium to the spouse

Punitive damages

–    Massachusetts allows for punitive damages if the conduct of the negligent defendant was “malicious, willful, wanton, reckless or grossly negligent.”
–    The Consumer Protection Statute, MGL Chapter 93A allows for multiple damages and attorney fees if violated

The fourth step is discovery.  We secure documents and written responses to questions from the defendants.  We take depositions of hostile witnesses.  We shepherd the case through the court aggressively.

During this phase we also work on completing our case.  We locate witnesses and take statements or depositions.   We notice depositions of businesses, medical providers and entities to prove negligence or damages.

The final step is settlement or trial.  For either, we need to be ready for trial.  We have to have effectively completed the above so the defense attorney and the insurance company know we can win at trial.  Once we are at that stage, we often prepare a demand package, or settlement brochure, which may include most, if not all, of the helpful documents, records and photographs to prove our case.  Settlement sometimes involves mediation with a court appointed, or private, “judge” to assist in resolving the case.

If settlement is unsuccessful, we go to trial.  For a wrongful death trial, you need an experienced Massachusetts trial lawyer, someone who is aggressive but also effective.   Burns & Jain have been trying cases in Massachusetts since 1985.  Call us at any time at 617-227-7423 for a free consultation about a Massachusetts death case.   All death cases are handled on a contingency basis so you do not have to pay an hourly rate