Why Doesn’t the Prosecutor File Your Wrongful Death Claim?

Wrongful death claims are a special type of lawsuit, and many of our clients find them confusing. They often ask, “Why isn’t the prosecutor filing this case?” It’s a good question. We naturally associate death with homicide, which is a crime in Virginia. However, under Virginia law, the estate’s personal representative files a wrongful death lawsuit, not the prosecutor.

There is a simple reason: this is a civil action, not a criminal one. Civil lawsuits involve disputes around personal injuries, where victims seek compensation from the defendant. Although your loved one’s personal representative files the suit, certain family members will receive any compensation paid by the defendant.

Please call Correll Law Firm if you have questions. Our Winchester wrongful death lawyer can answer any questions you have and explain the claims process generally. You can’t bring a loved one back, but you can obtain a measure of justice.

Wrongful Death Cases Are Civil, Not Criminal

A prosecutor brings charges for the violation of criminal laws. Wrongful death, however, is a civil statute. This means the estate has the right to sue the defendant for compensation, but a defendant won’t go to jail if they are found responsible for the death.

Under Virginia Code § 8.01-50, a death qualifies as wrongful when it stems from the neglect, default, or wrongful act of another person. In practical terms, you can sue anyone who intentionally, recklessly, or even negligently caused your loved one’s death. We often bring wrongful death claims for car wrecks, truck accidents, and other incidents which end up killing a family member.

In some cases, the defendant’s conduct, although negligent, doesn’t rise to the level of a crime. For example, a motorist might have briefly taken their eyes off the road, which results in them hitting a pedestrian who was trying to cross the street. This fleeting lack of care probably does not support criminal charges. But it would be enough to make the defendant liable for wrongful death.

In other situations, the defendant’s conduct is both criminal and wrongful. In those situations, the defendant might face criminal charges. But the personal representative can also file a wrongful death claim against them.

The Burden of Proof is Lower

This is another key difference. In a criminal trial, the defendant can only be convicted if there is proof beyond a reasonable doubt that he or she committed the crime. This standard is very high because the defendant’s liberty is on the line.

The burden is lower in civil cases like wrongful death. You only need to prove it is more likely than not that the defendant is responsible. This is called the “preponderance of the evidence standard.” Because the burden is lower, it’s usually easier to get a verdict in your favor—even if the defendant was acquitted in a criminal trial.

Criminal defendants also have other procedural protections which might not apply in a civil case. Talk with your Winchester wrongful death lawyer if you have questions.

You Can Only Receive Money Damages

A criminal conviction can result in the defendant being sentenced to time in jail or supervised probation. That type of punishment reflects the gravity of the crime.

With civil lawsuits, the defendant won’t go to jail. Instead, the most you can get is monetary compensation to make up for the income your loved one would have earned, as well as sorrow and mental anguish.

In some narrow cases, you might seek punitive damages. These are only available if the defendant acted with willful and wanton negligence. Essentially, the defendant’s conduct must be more offensive than merely careless. Instead, it exhibits a conscious disregard for other people’s rights or reckless indifference to the consequences. For example, a motorist who intentionally ran over your loved one has been willfully and wantonly negligent. The same is probably true of a drunk driver who pulls into a crowd.

Lawyers like to say punitive damages are “designed to punish,” which is true. Still, the defendant won’t go to jail. They will simply pay more money. A victim can receive punitive damages in addition to compensatory damages.

How Our Lawyer Can Help

If your loved one died in an accident, please call the Correll Law Firm. We have the experience you need to bring a wrongful death claim the correct way. Our lawyer can:

  • Investigate the death to determine liability. There is no reason for grieving family members to spend time on an investigation.
  • Collect evidence to show fault, such as speaking to witnesses or reviewing the police report.
  • Help you document your losses, including medical expenses, burial costs, and other out-of-pocket losses. This is a complex process, especially when trying to calculate how much income you have lost because of your loved one’s death.
  • Check whether the defendant has given statements to the police and analyze whether to use them in a wrongful death claim. This is a possibility when the defendant’s conduct also qualifies as a crime.
  • Identify all possible defendants. For example, if your loved one was attacked in a hotel or apartment, we might sue the landlord for negligent security. That improves the odds of receiving a fair settlement.
  • Help you have a person nominated as the personal representative if your loved one died without a will. This is a critical step to getting a wrongful death case filed.
  • Negotiate with the defendant to settle a claim for compensation. Our lawyer knows how to approach defendants and convince them to settle so that a lawsuit is unnecessary.

Speak with a Winchester Wrongful Death Attorney

Many of our clients are completely shocked when a loved one dies in an accident. One moment they left for work or school and the next you received a phone call from the police. At Correll Law Firm, we realize that this is a painful moment. For assistance with your wrongful death case, please contact us at your earliest convenience. Virginia gives family members a limited number of days to file this lawsuit, and we don’t want you to go over the deadline.