Investigating a Wrongful Death Claim
When a Michigan wrongful death attorney is engaged by a client to investigate whether or not there is a claim for damages against a negligent individual or corporation, they must look at the following elements that must be proved in every Michigan negligence case:
- Standard of care at the time of the accident
- Causation – Factual and Legal
- Intervening Conduct of Others
- Conduct of the Victim
When an experienced Michigan wrongful death attorney starts his or her investigation, they will immerse themselves in the facts of the case by utilizing investigators, public records searches, police reports and interviewing witnesses. Most wrongful death attorneys will focus on liability first as there are no damages without liability and proving the first four elements listed above. Many attorneys can lose sight of the fact that damages do not provide a basis for liability no matter how horrific or terrible the manner of death.
At Ford & Murphy PC, we will immediately begin to focus on identifying all of the potential defendants and their insurance coverage. We will also look for third-party defendants as well as non-parties that could be involved in the case so that a proper notice can be sent to all people involved in the case. This also avoids the need to amend pleadings during a case and getting a late start on the discovery process.
Discovery simply means that your legal team will engage in a process of investigating all of the important facts in your case. A Michigan wrongful death attorney will then make sure that all of the facts that have been discovered are translated in admissible evidence. This is critical in the process since only admissible evidence will be allowed to be introduced and reviewed by the fact finder, either the judge or jury.
Wrongful death lawyers will seek to get admissions, affidavits or sworn statements before a notary, actual testimony, foundation evidence, government reports and other evidence to help solidify their case. The ultimate goal is to have a fair and just presentation of all the evidence to a jury. This is one of the reasons why there is open discovery in all civil cases. Both sides will have an obligation to produce evidence that they intent to admit at trial. There are some exceptions to this rule, such as evidence that could be used to question the truthfulness of a witness after a false statement, but for the most part there will not be any Perry Mason moments during the trial process.
The right to cross-examine witnesses and to present evidence to a jury is a Constitutionally protected right. Proper investigation and discovery of the facts is the only real way to protect this right. Therefore, you must choose your wrongful death attorney carefully and make sure that they have both the time and resources to properly investigate your family’s case.
Michigan wrongful death attorneys have both formal and informal tools for discovering facts in their arsenal. Some of the most well-known and universally accepted tools used by attorneys include:
- Written Interrogatories
- Request for Production of Documents
- Request for Physical or Mental Examination
- Freedom of Information Act requests
- Request for Admissions
As stated above, there are several discovery tools that are recognized by the Michigan court rules. Among the tools recognized by Michigan court rule are; depositions (MCR 2.306), interrogatories (MCR 2.309), requests for production (MCR 2.310), requests for admission (MCR 2.312), and requests for physical or mental examination of a party (MCR 2.311).
MCR 2.302 controls how attorneys may or may not use the tools listed above. Discovery in Michigan wrongful death cases is broad but attorneys are only allowed to discovery relevant and not privileged information. Michigan courts have ruled that relevance in terms of discovery is NOT limited to evidentiary relevance. This simply means that there is more latitude when it comes to information that can be sought.
Michigan courts will grant broad discovery in wrongful death cases and much of it can be done informally. Courts are available if there are disputes and judges will not have any tolerance for games being played during the discovery process. There are many cases that have seen dismissals held up for willful failure to answer discovery requests. Therefore, you need to make sure that your Michigan wrongful death attorney knows the discovery process inside and out and is prepared to defend that right in court.
In wrongful death cases, expert witnesses can play a very important role in winning the case. In a case involving expert witnesses being named and identified in interrogatories, the court excluded their entire testimony. When the experts were actually deposed, they had NOT been retained by the Plaintiffs and they did not consider themselves experts in the fields indicated in discovery. The court imposed sanctions on the plaintiffs and their attorney and excluded all of their testimony. Be sure that your Michigan wrongful death attorney is prepared in all aspects of your case from start to finish.
Estate Process Can Affect Discovery
In a Michigan wrongful death case, the victim will be represented by the personal representative named by the probate court. Wrongful death attorneys need to remember that a possible cause of action can be an asset of the estate. There may be discovery that is allowed in the probate court before filing your wrongful death action in order to preserve the asset of the estate. This type of discovery might be less costly to the estate than going to full blown litigation. Pursuant to MCL 700.1205, discovery may be ordered by the court in certain circumstances. The most common is where there may be embezzlement, conversion, or hiding of assets in the estate.
A Michigan wrongful death attorney may be able to get access to documents like medical, police and business records not otherwise available without the probate estate. This also gives the attorney an official avenue to try and force potential defendants to turn over valuable information that may be able to encourage a settlement without a lawsuit.
A Michigan wrongful death attorney will very often employ consultation experts they do NOT plan to call as witnesses in the matter. The courts have limited the use of these nontestifying experts to reports of examining physicians governed by MCR 2.311 (B) and exceptional circumstances where the information cannot be sought by other means.
Discovery is Dynamic
Too many Michigan wrongful death lawyers simply push a button on their word processors and spit out reams of unnecessary discovery and blindly serve it upon opposing counsel. There are many reasons why this is NOT advisable, but the main reason why we do not conduct “shotgun” discovery is that it tells the other side that you are not prepared to do everything it takes to see this case to the end. Therefore, every time that you discuss the case with insurance adjusters, opposing counsel or others in their office, their opinion about your willingness to try the case is questioned. If a law firm takes the time to know the file inside and out, craft custom interrogatories, requests for admissions and strategically conduct depositions, the other side knows that your lawyers mean business and are preparing to win your case at trial.