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Looking for Advice: Car Accident Lawsuit: Just found out I'm suing a dead person

Plainfield, NJ |

I'm suing for damages after a 2009 car accident and only looking at about 7500 before lawyer & med fees. They are trying to push me into no deposition & no court appearance. My lawyer thinks i should take this offer HOWEVER, I just found out that the person I'm suing is no longer alive (separate incident). Does this make a difference? Could it help my case if she died due to reckless driving? The obituary didn't state cause of death but my lawyer didn't care that she was deceased yet I feel like this could make a difference & should be looked into.
If I decided to go to trial (which i prob wouldn't anyway), doesn't the person i'm suing have to appear? What happens in situations like this? My lawyer stated that I could get anywhere between 7500-12,500 but now he wants me to settle for 7500

Attorney Answers 5


  1. The fact that a defendant has passed away does not halt litigation. A motion is filed to substitute a party defendant replacing the deceased with the Executor, Administrator or Personal Representative of the Estate. You really need to talk only with your own attorney about the damages, liability and potential settlement or verdict. Here's more on discovery: [CLICK-BLUE-LINK-BELOW]

    Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.


  2. Your claim would be against the estate. Don't settle for a lawyer who only knows how to settle. Make sure you retain a lawyer with a low contingency fee, less than 30%, so you don't get hurt twice. Also, make sure the medical bills are negotiated down to pennies on the dollar BEFORE you sign any release. Good luck.


  3. You should probably trust your lawyer's opinion. If you do not understand his/her rationale, ask for an explanation. By way of further response, the fact that the defendant died due to reckless driving in another crash is almost certainly inadmissible. Second, no, the defendant does not have to appear - and in this case she cannot. It ultimately gives you a slight benefit, if any, as defendant will have to prove his case without the benefit of her testimony.

    This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship. To get legal advice, consult an attorney in your local area or the area where the issue is located. It should not be relied upon as legal advice. The response is based on the limited facts provided, and without any independent investigation of the author. Given additional or different facts, the response would likely change. The attorney providing this response is licensed in Pennsylvania and New Jersey, and you should contact an attorney in your jurisdiction if it is outside those jurisdictions.


  4. In order to analyze the dollar value your case may be worth I would need to review your medical reports. As far as the other driver being deceased, it does not affect your case except that if liability is an issue, this person could not testify on his behalf,giving you an edge and the insurance company an incentive to settle.

    973-984-0800. Please be advised my answers to questions does not constitute legal advise and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.


  5. Listen to your lawyer. The insurance company is defending the deceased defendant. I am assuming liability is not an issue, so the absence of the defendant makes no difference and, if liability is an issue, is probably a benefit to defense counsel, who can now make his case on cross-examination and argument alone. The cause of the defendant's death is irrelevant. In fact, at trial, the fact that the defendant is deceased will be disclosed to the jury and may have a depressive effect on the amount of damages awarded. As former insurance defense counsel, I know that the defense usually wins the caes that go to trial (as defined by the pre-trial offer & demand). No one here can evaluate what your case is worth without reviewing all the medical information. Regarding settlement, you also have to consider the cost of trial. Your medical expert doesn't come to court for free. A chiropracter's fee for testimony is probably between $1,000 - $1,500; a medical doctor or orthopaedist between $3,500 - $5,000. You need to keep your eye on the net to you given your downside and upside potential after factoring the costs and decide if the settlement net is so vastly different from the potential judgment net (after increased costs as described above) is worth the risk rolling the dice with a jury. BTW, jury instructions in a personal injury case favor the defendant in my opinion.

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