Wrongful Death From
The Defendant’s Perspective by Robert K. Nead
When I was asked to write an article
for the Trial Reporter on the Defense Perspective in Wrongful Death Cases, I wondered if there were really a differ- ent perspective in the handling of such cases by attorneys representing plaintiffs and attorneys representing defendants. Upon consideration, I concluded that there is not really a difference in per- spective between claimants’ counsel and defense counsel in the handling of wrongful death actions. We each have clients to represent, and we each need to properly and professionally prepare our cases for trial. When the defense of a wrongful death
action has been assigned to me from an insurance carrier, the facts surround- ing the occurrence must be reviewed objectively. If there is a conflict in the manner in which the accident occurred between the investigative reports of the police agency and any statements from the defendant or witnesses, it is advisable to meet with the defendant as promptly as possible to evaluate the defendant as a witness on his own behalf and to de- termine the credibility of the defendant’s version of the occurrence and his ability to communicate effectively. Will the de- fendant have the ability to communicate to the jury the facts in such a manner as
to persuade the jury that, while he has great sympathy for the survivors bring- ing the action because of the death of the person involved in the accident, the accident itself was not caused by his neg- ligence? In interviewing the defendant defense counsel should ask those ques- tions most likely to be asked by counsel for the plaintiff at the time of the defen- dant’s deposition. When a defendant has given a recorded or written statement to an insurance representative, it is my practice to question the defendant in a much more detailed manner than that usually found in a written or recorded statement.
Fall 2008
Trial Reporter
49
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