Leon Law offers a comprehensive review of managing death amid civil litigation
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A personal injury attorney can oftentimes find themselves in interesting legal predicaments by virtue of the day-to-day business of running any kind of law firm in a major metropolitan area but even the legal experts at Leon Law can find themselves in uncharted waters.
What happens when a loved one passes away during an active litigation? For Jose Leon — principal and founder at Phoenix-based Leon Law — he says the legal impacts can be nuanced and dramatic depending on the particular legal predicament.
“The death of a party to a case can slow the process and also extinguish some claims,” Mr. Leon told the Digital Free Press. “If a person has a personal injury claim the pain and suffering portion of their claim will go away. There will need to be an estate opened with a personal representative who has authority to make decisions. But the estate will only have the medical bills available.”
For more than a decade, Leon Law and its dedicated staff have taken on the mantra of education first — no matter the case, client or circumstance.
Mr. Leon has called the Phoenix metropolitan area home since 1998, after growing up in Nogales, Ariz. He was born in Sinaloa, Mexico, and came to the United States when he was 6 years old.
Mr. Leon explains that when a person dies — depending on the unique circumstances of a legal claim resulting from bodily injury — the claim does not necessarily end but shifts into a survival action or a wrongful death action. There are two key factors to understand:
A survival action allows the deceased person’s estate to continue the personal injury claim. This action seeks to recover damages the deceased would have been entitled to had they survived, such as: medical expenses incurred before death and/or lost wages before death.
A wrongful death action is a separate claim brought by the deceased person’s surviving family members. This action seeks to recover damages for the losses they have suffered due to the death, such as: loss of financial support or aid in funeral and burial expenses.
Mr. Leon says the establishment of the proper legal entity to carry out the accident injury claim is critical in the event of an untimely death amid litigation.
“When someone dies who is involved in a lawsuit the court will need to wait until that person’s estate has a personal representative with authority to make decisions,” he said. “Otherwise, there is no one with authority to move the case forward. If the person passes away because of the accident then a wrongful death claim can be brought by the immediate family (statutory beneficiaries) against the at-fault parties.”
Looking at immediate tactical impacts a death amid litigation can have is both positive and negative, Mr. Leon says pointing out each impact is based on the unique tenets of a case.
“The death of a claimant can help in the event that person had information that was never presented on the record. There are times the person is incapacitated and a deposition or testimony is not secured before they pass. If the testimony or evidence had exculpatory value then if they pass it can weaken one’s case,” he said. “But, if the death of the person is unrelated to the accident then the family does not have any legal right to pain and suffering in relation to the accident in question.”
From a procedural standpoint, Mr. Leon explains upon the passing of a client amid litigation, a personal representative will be assigned and will make decisions in the best interest of the deceased.
“As a lawyer, I have an obligation to balance the best interest of the case with the ethical requirements to the process,” he said. “So, we must take what is allowed within the bounds of the law to execute a strategy that will net the best result for our clients. The objectives of the client that passes away will be decided by personal representative. The attorney and the personal representative will make decisions in the best interest of the person that passed away.”
Leon Law has three locations in Arizona:
- •Phoenix: 20 E. Thomas Rd, Suite 2200, Phoenix AZ 85012
- •Peoria: 16165 N. 83rd Ave, Suite 200, Peoria, AZ 85382
- •Tucson: 1 South Church Ave Suite 1200 Tucson AZ 85701
