Whenever Jayme Walker represents a client in a wrongful death suit, she gives them two things that fall outside her customary role as legal counsel: a copy of David Kessler’s Finding Meaning: The Sixth Stage of Grief and recommendations on where to seek grief counseling.
Walker is an attorney at the 45-year-old Oakland law firm of Gwilliam Ivary Chiosso Cavalli & Brewer who specializes in discrimination, harassment, products liability, police misconduct and personal injury cases. Of all these areas of legal expertise, wrongful death suits are the ones that can be most wrenching — for the attorney as well as for the plaintiffs.
“These are highly emotional cases,” Walker said. “You’re talking about someone who has lost a loved one because of somebody else’s negligence. There’s an immense amount of grief.”
Not only has the person lost whatever measure of love and comfort the loved one provided, the death can also undermine the surviving party’s income. “A child who has lost a parent, a spouse who lost a primary wage-earner may also have lost their sole or primary means of financial support,” Walker said. “Where do they go? How do they get by? Their whole world is shaken.”
Hence the need to be part counselor, part advisor and part sharer in the emotional and financial toll. “We call ourselves holistic lawyers, which means we look at the whole person and the whole of the problem,” Walker said. “When you have such an intense amount of grief, you and the litigation you bring become an important part of helping the person keep the memory and spirit of their loved one alive.”
Wrongful death suits apply to a broad range of circumstances in which negligence results in a death. Some of the most familiar examples are car or truck crashes, medical malpractice, defective products, and construction accidents. Other less common examples include incidents such as child abuse or a restaurant whose improper handling and storage of food resulted in lethal cases of food poisoning.
“Wrongful death can be anything from defective products, like an exploding battery or an unsafe machine at a person’s workplace, to an incident that happened to a student at school, to police misconduct that results in death,” Walker said. “They are part of tort law and are civil, not criminal, cases.”
Civil vs. criminal cases
Because they are civil cases, wrongful death suits can be brought in tandem with criminal cases as part of a larger legal framework to recover damages. “It’s a dual track,” Walker said. “There are no civil remedies under criminal law. If someone is speeding for another reason, say they are fleeing the police and they hit someone, it just punishes the perpetrator. But punishing the perpetrator does nothing to help the family financially.”
Perhaps the most well-known case was the one brought against O.J. Simpson by the families of Ron Goldman and Nicole Brown Simpson. Although the jury in the criminal case against Simpson found him not guilty, the jurors in the wrongful death civil case did find Simpson liable for the murders and awarded the families $33.5 million in damages.
But not everyone who loved or benefited from the life of the deceased can bring a wrongful death suit. Only the surviving parties who are heirs under California law and who are either directly and/or materially affected can do so: parents, children, spouses, registered domestic partners, an adopted child, an adoptive parent, or legal guardians.
And those who do have standing may not be awarded damages. The attorney has “to walk a very fine line,” Walker said. “At the same time that you may be able to offer a remedy, you have to advise them of the reality that there is no sure thing. It’s very sensitive.”
Finding purpose after a death
Perhaps the one saving grace, if indeed there is one, is that wrongful death suits can be both a form of healing for families and serve as a springboard to wrest greater meaning from death. “No one ever comes to me and says, ‘My loved one died, and I want money,’” Walker said. “They always say that they don’t ever want this to happen to anyone else. Having that wider purpose can help bring closure.”
And even, in some instances, lead to fundamental social reform. Walker cites the case of an Alameda couple she represented whose mentally ill son was placed in restraints by police and subsequently asphyxiated after an incident over a broken bottle in a convenience store. “The police should have known that he was mentally ill, because the parents had contacted the police department for help several times in the weeks before,” Walker said. “There was no database with a record of the information of previous contacts with the mentally ill. This man died over a few broken bottles. There was no excuse for the excessive force that was used, especially when de-escalation tactics should have been used and special care should have been taken when dealing with someone in mental crisis.”
The parents funneled their grief into political action and formed a political action committee dedicated to candidates who support police reform. “As part of the settlement, the parents were able to get an audience with the police chief to discuss reforms,” Walker said. The mother, who had sunk into an incapacitating depression after losing her son, began offering grief yoga to anyone who needed it. “The lawsuit and the healing that came after it allowed her to transform from a broken place to a beneficial one,” Walker said.
That’s why, despite the pain of having to relive the experience at a trial, the cases can be so rewarding, Walker said. “There’s a saying that there’s no true healing until the litigation is behind you. But some people feel empowered by taking action, and should they have a recovery, it can be very meaningful.”