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Obtaining justice when a child dies; representing a family in a child death case can be a gut-wrenching experience. Tap into your own empathy and that of jurors to ensure that your clients get full and fair compensation for their loss.

Article Excerpt
Few cases present as many problems but reap as many rewards as those involving the death of a child. It may be difficult to get special damages because children often have no wage loss. If death was sudden, medical expenses may be minimal. State law may cap damages or limit recovery to the value of the loss of the child's relationship (as opposed to the child's pain and suffering and the surviving family's grief).

These cases are very difficult on a personal level because the death of a child evokes strong emotions. It defies our ingrained understanding of the natural order of life: We are not supposed to outlive our children. Our identifies are tied to our children. If you, as an advocate for the surviving family, do not find these cases to be gut-wrenching, you are probably not the best lawyer for the case.

Why expend time, money, heart, soul, and mind on these cases? Because the personal rewards are great in helping the surviving family get answers, justice, and some closure. Doing this requires the lawyer to carefully search out the facts--what I will call the "nuts and bolts"--and present the case in the most persuasive manner possible (which varies depending on the advocate).

This article is limited in scope because state laws vary. I will focus on the element of damages that the surviving family can recover in most states--generally speaking, the value of the loss of the relationship with a child.

Prerequisites

Aristotle said that "persuasion is achieved by the speaker's personal character when the speech is so spoken as to make us think him credible." While I think he was a bit vague about the essence of persuasion, it is difficult to argue with his concept. I believe that one character trait---empathy--is more important than any other in convincing a jury to award damages in a child death case. If you, as an advocate, cannot feel the loss caused by the death of a child, persuading the jury to award full and fair damages to the family will be a great challenge.

Each lawyer brings different styles and life experiences to the courtroom. Some are better equipped than others to bring to the jury what I call "empathetic advocacy." I believe I became a much better advocate in child death cases after I became a parent because I then was able to appreciate fully the joy a child brings to life. There is a great deal that you can do to show you feel a client's loss, but you must be careful not to go too far, or the jury might think you are trying to tug at their heartstrings.

'Nuts and bolts'

Know the child. At the expense of stating the obvious, you cannot obtain full justice for your clients without knowing the child well. Developing an appreciation for who the child was is difficult and challenging. To learn...

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