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Grief and Loss: Identifying and Proving Damages in Wrongful Death Cases

Book Review by H. Richard Webster in TRIAL (December 2010)

Before becoming an attorney, I was a counselor serving substance abusers and their families. I was also severely burned in an acetone flash fire, and I became a lawyer after my own lawsuit. I’ve experienced the grief process firsthand from both a personal and professional perspective. Grief and Loss: Identifying and Proving Damages in Wrongful Death Cases not only reminded me of what’s important regarding grief and loss; it also helped me think more broadly about representing clients while reinforcing my own belief in the therapeutic power of litigation.

Meeting bereaved clients for the first time and seeing their eyes as they struggle to describe the loss of their son, daughter, or parent, you become part of their grieving world. Representing them brings you into an intimate and sometimes frightening place with someone who is facing grief—a universal yet unique moment of truth for both the client and the lawyer, and a moment fraught with the potential to harm as well as heal.

Mila Ruiz Tecala is the founder and director of the Center for Loss and Grief in Washington, D.C., and a private therapist. She regularly works on wrongful death cases with coauthor Robert Hall, a personal injury lawyer in Reston, Virginia. In this book they effectively weave their professions together, offering an engaging look at the grief process during wrongful death litigation. The book comes with a DVD that contains some valuable resources.

It was easy to insert myself into the role of the bereaved person in each of the many vignettes provided. Detailed stories of children’s deaths and the troubled families the children left behind reminded me of clients, friends, and family members I’ve known in similar circumstances. While painful, empathizing with the book’s subjects is what the authors hope readers will do. If an attorney can participate in the family’s grief process, he or she can be a more effective advocate.

Too many people, both lawyers and potential jurors, hold a stubborn belief that grief follows some linear progression—and that they know what "normal" grieving behaviors are. The "tasks of grief" the book describes arise uniquely for each individual. The authors recommend early intervention by a grief therapist, who already knows how to explore the sometimes complex grieving behavior of the people involved and can inform the attorney on these issues.

A grief therapist can determine and testify as to whether a family’s grief progression is normal, or whether one or more family members may have developed a complicated grief reaction. The therapist as witness can also speak for clients who may be unable to articulate their experience well. The therapist can explain to the jury the psychological state of each person as well as the entire family.

Preparing for trial can have damaging effects on people who are grieving. Once, while preparing a woman who had lost her six-month-old son in an accident, I explained that I had to ask her several painful questions, one of which was about the appearance of her dead son when his body was brought to her in the hospital. I wanted to make sure she had heard the worst from me in preparation, not thinking the defense attorney would actually ask such a question.

To my astonishment, the next day at deposition, the defense attorney did ask about her son’s appearance, and the woman was able to answer it without being rattled because she had been prepared. Preparation for depositions or trial can force clients into painful memories and leave them emotionally vulnerable, but a grief therapist can help. The therapist can prevent the other attorney from inflicting further emotional injury by preparing the client emotionally.

The litigation process can also facilitate healing in other ways, such as by creating an opportunity for the bereaved to forgive the defendant. The authors observe, "We must never lose sight of the curative power of forgiveness. Even a fully victorious trial outcome may leave the bereaved feeling empty." This is a significant point that many trial attorneys may not fully grasp.

When your client has lost a loved one, nothing compares with the grief challenging him or her. This book gets specific about how to help in those circumstances. For children, their emotional vulnerability can follow them forever. For parents, the guilt that most of them feel—regardless of their role in the child’s death—becomes predominant. Grief and Loss illustrates the ways a successful claim can help a client work through emotional issues, lift the burden of guilt, and change an industry or behavior in a way that makes the world safer.

H. Richard Webster practices law with Hanson, Bjork & Russell in Des Moines.

Reprinted with permission of TRIAL (December 2010, Vol. 46, No. 12)

Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®)

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