How to Prove Wrongful Death in a Civil Case

If you have lost a loved one due to the negligent or intentional acts of another, most of us cannot fully imagine your level of resulting pain and grief. While there is nothing that could completely remedy such a devastating loss, Oregon law, in providing for wrongful death actions, makes a two-fold effort: first, to right a wrong; and second, to make society safer by holding wrongdoers responsible for their actions. Although many people have heard of wrongful death lawsuits, it is understandable that ordinary citizens also have many questions about the procedures involved in pursuing and proving a wrongful death case. We will answer some of those questions in this article.

Understanding the Burden of Proof and Gathering Evidence to Meet It

In a civil action, the plaintiff must prove his or her case by a preponderance of the evidence. This burden of proof means more likely than not. Therefore, it’s important to start gathering evidence as early as possible to be better prepared to meet the burden of proof. Some items of evidence are easy to gather, and some are more difficult. Moreover, some evidence can be gathered prior to filing a lawsuit, while other evidence sometimes can only be gathered after the filing of a lawsuit. Following are some examples.

  • Evidence Gathered Prior to Suit

A plaintiff can start documenting his or her loss, almost immediately. For example, photographs are a common form of evidence that almost anyone can gather. Photos of accident scenes, damaged vehicles, and personal injuries are common examples. Plaintiffs can also gather many types of relevant medical, financial, and other records which will help prove damages in the case.

  • Evidence Gathered After Suit

Many times, a plaintiff needs evidence which the defendant or third parties will not willingly supply. For example, a trucking company may not freely supply repair records which would show that mechanical problems with a truck were intentionally ignored, or that a driver was not properly trained. A nursing home may not willingly provide records demonstrating that it has violated patient rights in the past. Or a manufacturing company may attempt to withhold records proving that it ignored the dangers that asbestos posed to its workers.

In all of these cases, the filing of a lawsuit provides the plaintiff with tools to assist in obtaining these important records. The rules of discovery allow a plaintiff to submit requests for many types of documents and to depose important witnesses. Similarly, subpoenas can sometimes be used effectively to obtain important evidence.

Identifying the Specifics of the Wrongful Conduct

The sooner a plaintiff can determine the specifics of the type of wrongful death action, the more effectively the plaintiff can properly investigate the facts of the case. For example, did a tractor-trailer accident occur due to driver error, the company’s negligent hiring of the driver, or a failure to properly maintain the vehicle? Did a nursing home death occur as the result of physical abuse, negligent administration of an improper medicine, or the nursing home’s failure to follow proper procedures? Often times, an attorney’s assistance is imperative to obtain this important information.

Other Complicating Legal Factors

Not only must the plaintiff meet the applicable burden of proof, but he or she must do so within the construct of an array of rules and statutes which can sometimes be confusing. Evidence presented in court must meet the applicable rules of admissibility. The parties must comply with Oregon’s rules of civil procedure and the Oregon Uniform Trial Court Rules. If you have questions about these complicated issues, we have lawyers who can answer your questions.

Speak with a Lawyer

Defendants and their insurance companies take wrongful death cases very seriously. The insurance company will hire capable, experienced lawyers in an attempt to minimize their losses. We take pride in helping victims pursue justice, which in the end makes society safer for all of us. Please call us with questions or for a free consultation.


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