What an attorney does in a wrongful death case

A wrongful death attorney investigates the death, gathers evidence, negotiates with the at-fault party's insurance company, and files a lawsuit if settlement talks fail. They do not work for you for free—most operate on contingency, meaning they take a percentage of what you recover (typically 25 to 40 percent) and you pay nothing upfront. If you recover nothing, they recover nothing.

The attorney's job is to prove that someone else's negligence or intentional act caused the death, that the death resulted in measurable losses (medical bills, lost income, funeral costs, loss of companionship), and to put a dollar value on those losses. They handle all communication with the other side's insurance adjuster or lawyer, file court documents on important date, and represent you if the case goes to trial.

You do not need an attorney to file a wrongful death claim—you can contact the at-fault party's insurance company yourself and negotiate directly. Many people do. But an attorney knows what damages insurance companies routinely undervalue, what evidence insurers will demand, and how to present your case so the settlement reflects what it is actually worth.

Key Takeaways

  • An attorney works on contingency in most wrongful death cases, taking a percentage of your recovery instead of an hourly fee, so you have no upfront cost.
  • You can negotiate with the insurance company on your own, but an attorney knows what damages are undervalued and how to present evidence that strengthens your position.
  • The attorney's role includes investigation, evidence gathering, negotiation, and filing a lawsuit if settlement talks break down.
  • State law determines who can file a wrongful death claim (usually spouse, children, or parents) and what damages you can recover, so an attorney familiar with your state's rules is essential.
  • Most wrongful death cases settle before trial, but an attorney must be prepared to litigate if the insurance offer does not reflect the true value of your claim.

How to find an attorney in your state

Start with your state bar association's lawyer referral service. Every state bar maintains a searchable directory of attorneys licensed in that state, often organized by practice area. Search for "wrongful death" or "personal injury" in your state, and the bar will return names of attorneys who handle these cases.

Ask for a consultation—most wrongful death attorneys offer a free initial meeting to discuss your case. During that call, ask how many wrongful death cases they have handled, whether they have tried cases to a jury or primarily settle, and what percentage they charge on contingency. Do not hire based on the first call. Contact three to five attorneys, compare what they tell you, and choose the one whose experience and communication style fit your situation.

If you cannot afford to search on your own, contact your local legal aid office or a law school clinic. Some offer free or low-cost representation in wrongful death cases, though availability depends on your income and the circumstances of the death.

What happens during the investigation phase

After you hire an attorney, they begin gathering evidence. In a car accident, that means police reports, witness statements, vehicle damage photos, and medical records. In a workplace death, it means OSHA reports, safety inspection records, and testimony from coworkers. In a medical malpractice death, it means hospital records, the pathology report, and often a review by a medical informed who can testify that the doctor's actions fell below the standard of care.

Your attorney may hire investigators, accident reconstructionists, or medical experts to build the case. These costs come out of the contingency fee, not your pocket. The attorney will also request documents from the at-fault party through a formal process called discovery—insurance companies and defendants are legally required to turn over relevant records, emails, maintenance logs, or training materials that show negligence.

This phase typically takes three to six months, depending on how complex the case is and how quickly the other side responds to document requests. Your attorney will keep you informed of major findings and ask you for documents or information they need from you.

Settlement negotiation and what to expect

Once the investigation is complete, your attorney sends a demand letter to the at-fault party's insurance company. This letter summarizes the evidence, explains why the defendant is liable, and lists all damages—medical bills, funeral costs, lost wages the deceased would have earned, and non-economic damages like loss of companionship or emotional suffering. The demand includes a specific dollar amount.

The insurance company will respond with a counteroffer, usually much lower than your demand. Your attorney will negotiate back and forth. This process can take weeks or months. The goal is to reach a settlement that both sides accept without going to court. Most wrongful death cases settle at this stage.

If settlement talks stall, your attorney will file a lawsuit in court. This does not mean you will go to trial—many cases settle even after a lawsuit is filed, sometimes right before trial begins. But your attorney must be prepared to take the case all the way to a jury if the insurance company's final offer is unreasonable.

When you should hire an attorney versus handling it yourself

Hire an attorney if the death involved a third party (another driver, a business, a medical provider, a manufacturer), if significant damages are involved (substantial medical bills, lost income, or loss of a primary earner), or if liability is unclear or disputed. You should also hire an attorney if the at-fault party's insurance company denies the claim or offers far less than you believe the case is worth.

You may not need an attorney if the death was caused by a single, clear act of negligence (a rear-end car accident where the other driver admits fault), damages are modest, and the insurance company is cooperating and offering a reasonable amount. Even then, an attorney can review any settlement offer to make sure you are not leaving money on the table.

Do not delay hiring an attorney. Wrongful death claims have statutes of limitation—time limits set by state law for filing a lawsuit. These limits vary by state and by the type of case, but they typically range from one to three years from the date of death. If you wait too long, you lose the right to sue.

Understanding contingency fees and costs

A contingency fee means the attorney's payment depends on the outcome. If you recover money through settlement or judgment, the attorney takes a percentage. If you recover nothing, the attorney receives nothing. This aligns the attorney's interests with yours—they only make money if you do.

Contingency percentages vary. Many attorneys charge 25 to 33 percent if the case settles before trial, and 33 to 40 percent if it goes to trial (because trial requires more work). Ask about this during your consultation and get the fee agreement in writing before you hire them.

Separate from the contingency fee, you may owe case costs—expenses for filing fees, informed witnesses, investigators, or medical records. Some attorneys advance these costs and deduct them from your recovery. Others ask you to pay them as they arise. Clarify this in writing before you sign an agreement.

What damages an attorney can recover

State law determines what you can recover in a wrongful death claim. Most states allow recovery for economic damages (medical bills incurred before death, funeral and burial costs, lost wages the deceased would have earned, lost benefits like health insurance) and non-economic damages (loss of companionship, emotional suffering, loss of parental guidance if a child died).

Some states cap non-economic damages—meaning there is a legal limit on how much you can recover for emotional suffering or loss of companionship. Your attorney knows your state's caps and how courts in your area typically value these damages. They will use that knowledge to build a settlement demand that reflects what similar cases have recovered.

A few states allow punitive damages if the defendant's conduct was especially reckless or intentional. These are meant to punish the defendant, not just compensate you. Your attorney will tell you whether punitive damages are possible in your case.

Frequently Asked Questions

Can I hire an attorney if I am not the spouse or parent of the deceased?

State law determines who can file a wrongful death claim. Most states limit it to the spouse, children, and parents. Some states allow adult siblings or grandchildren if no spouse or children exist. An attorney in your state can tell you whether you have legal standing to file a claim based on your relationship to the deceased.

What if the at-fault party does not have insurance?

Your attorney can still file a lawsuit against the at-fault party personally. However, collecting a judgment from someone without insurance or significant assets is difficult. Your attorney may recommend checking whether your own insurance policy includes uninsured motorist coverage (in a car accident) or whether other coverage applies. They can also explore whether a business or property owner is liable.

How long does a wrongful death case usually take?

Most cases settle within six months to two years. straightforward cases with clear liability and cooperative insurance companies may settle in three to six months. Complex cases involving multiple parties, disputed liability, or informed testimony can take two to four years or longer if they go to trial. Your attorney can give you a realistic timeline after reviewing your specific circumstances.

Do I have to go to court or testify?

Not necessarily. If the case settles, you may never set foot in a courtroom. If it goes to trial, you may be called to testify about your relationship to the deceased and the impact of their death, but your attorney will prepare you and handle most of the legal arguments. Your attorney represents you in all negotiations and court filings.

What if I disagree with my attorney's settlement recommendation?

You have the final say on whether to accept a settlement offer. Your attorney must advise you of all offers and explain the risks of rejecting them, but the decision is yours. If you and your attorney cannot agree on strategy, you can fire them and hire a different attorney, though you may owe them a portion of any recovery based on the work they completed.