Understanding Legal Fees and Costs in a Wrongful Death Lawsuit

TL;DR

Most wrongful death lawyers operate on a contingency fee basis, which means you pay no upfront legal fees. The attorney only receives payment if they successfully secure a financial settlement or a favorable court verdict for you. This fee is a pre-agreed percentage of the total recovery, typically ranging from 33% to 40%. Separate from the lawyer’s fee are case costs, which cover expenses like expert witness testimony and court filing fees. These costs are often advanced by the law firm and reimbursed from the settlement money.

Key Highlights

Contingency Fee Model: You do not pay your lawyer by the hour or provide an upfront retainer.
Percentage-Based Payment: The attorney’s fee is a percentage of the money recovered on your behalf.
Common Fee Range: Expect the percentage to be between 33.3% and 40%, depending on the case complexity and stage of litigation.
Case Costs vs. Legal Fees: Legal fees pay the lawyer for their time and work, while case costs cover out-of-pocket litigation expenses.
No Recovery, No Fee: If your case is not successful, you will not owe your attorney any legal fees.

Introduction

The unexpected loss of a family member due to another’s negligence creates an immediate and profound void. Beyond the emotional distress, families often face sudden financial pressures, including medical bills, funeral expenses, and the loss of a primary income. Statistics from the Centers for Disease Control and Prevention show that preventable injuries are a leading cause of death in the United States, with tens of thousands of families impacted each year by incidents ranging from motor vehicle collisions to medical errors. These events trigger not only grief but also a host of practical and financial questions.

A wrongful death lawsuit is a civil action that allows surviving family members or the decedent’s estate to seek financial compensation from the responsible party. These claims are governed by specific state statutes that dictate who is eligible to file a lawsuit and what types of damages can be recovered. These damages are intended to compensate for the financial and emotional losses suffered by the survivors, such as lost wages, loss of companionship, and medical expenses incurred before death. The legal framework provides a path toward accountability and financial stability for those left behind.

For many families, the thought of hiring an attorney can seem like another financial burden they cannot afford. This concern is precisely why understanding the financial structure of a wrongful death claim is so important. The standard payment model in this area of law is designed to provide access to justice for everyone, regardless of their financial situation. By learning how attorneys are compensated and how case expenses are managed, you can make informed decisions to protect your family’s rights and secure its future.

The Contingency Fee Agreement: How Lawyers Get Paid

When a family decides to pursue a wrongful death claim, one of the first and most practical concerns is the cost of legal representation. The good news is that personal injury and wrongful death attorneys almost universally work on a contingency fee basis. This arrangement is the cornerstone of providing legal access to families who would otherwise be unable to afford a lawyer.

What is a Contingency Fee?

A contingency fee is a payment structure where the attorney’s fee is “contingent” upon the outcome of the case. In simple terms, the lawyer only gets paid if you get paid. If the lawyer fails to secure a settlement or a jury verdict in your favor, you owe them nothing for their time and effort.

This model effectively transfers the financial risk of the lawsuit from the client to the law firm. The law firm invests its own time, resources, and money into building and prosecuting your case. This system incentivizes attorneys to take on cases they believe have merit and to work diligently to achieve the highest possible recovery for their clients, as their payment is directly tied to that result.

Standard Percentage Rates and What They Cover

The contingency fee is calculated as a percentage of the gross (total) amount recovered. While the exact percentage can vary by state, law firm, and case complexity, a standard range is:

33.3% (or one-third) for cases that settle before a lawsuit is formally filed or before extensive litigation begins.
40% for cases that require filing a lawsuit, proceeding through the discovery process, and going to trial.

This percentage covers the attorney’s professional services. This includes thousands of hours of work that go into a successful claim, such as investigating the incident, gathering evidence, interviewing witnesses, drafting legal documents, negotiating with insurance companies, and, if necessary, presenting the case in court.

How the Percentage Can Change

The fee percentage is not always fixed. Many fee agreements use a “sliding scale” that adjusts the percentage based on how far the case progresses.

Pre-Litigation Settlement: If the case is settled through negotiations with the at-fault party’s insurance company before a lawsuit is filed, the fee might be at the lower end, around 33.3%.
Post-Litigation Settlement: If a lawsuit is filed and the case settles after the discovery process (which involves depositions and expert reports) but before trial, the fee might increase to 35-38%.
Trial Verdict: If the case goes to a full trial, the fee will almost certainly be 40% or sometimes even higher, reflecting the immense amount of work, time, and risk involved in trial preparation and execution.
Appeals: If a verdict is appealed by the other side, the fee agreement may specify an even higher percentage (e.g., 45% or 50%) to handle the appellate process.

Additionally, some states place legal caps on contingency fees, particularly in medical malpractice cases. For example, a state might limit fees to 30% of the first $250,000 recovered, 25% of the next portion, and so on. An experienced wrongful death attorney will be familiar with the specific rules in your jurisdiction.

The Written Agreement

Every contingency fee arrangement must be put in writing. This document, known as a fee agreement or retainer agreement, is a legally binding contract between you and your attorney. You should read it carefully before signing and ask questions about anything you do not understand. A transparent and ethical attorney will gladly walk you through every clause. The agreement should clearly state the exact percentage(s), how case costs will be handled, and what happens if the case is lost.

Distinguishing Between Attorney Fees and Case Costs

One of the most common points of confusion for clients is the difference between attorney fees and case costs. While they are related to the lawsuit, they are two separate categories of expenses. Understanding this distinction is crucial for knowing exactly how a future settlement will be distributed.

Attorney Fees Explained

As discussed, attorney fees are what you pay your lawyer for their legal expertise, strategic guidance, and work on your case. This is the percentage taken from the final recovery amount. It is the firm’s income, used to pay salaries, overhead, and to fund other cases.

A Breakdown of Common Case Costs

Case costs, sometimes called litigation expenses, are the out-of-pocket expenses the law firm pays to third parties to build and pursue your case. These are the costs necessary to gather evidence and present a compelling argument to an insurance company or a jury. Wrongful death cases are often expensive to prosecute because they require a high level of proof.

Common case costs include:

Court Filing Fees: Every court charges a fee to file a lawsuit and other legal motions.
Service Fees: Fees paid to a process server to legally deliver the lawsuit and subpoenas to defendants and witnesses.
Deposition Costs: This includes fees for the court reporter who creates a transcript of the testimony and sometimes a videographer. These costs can run into thousands of dollars.
Expert Witness Fees: This is often the single largest expense in a wrongful death case. Experts are hired to provide specialized testimony. Examples include:
- Medical doctors to explain the cause of death.
- Accident reconstructionists to determine how a collision occurred.
- Engineers to identify a product defect.
- Economists to calculate the lifetime financial losses.
Investigation Costs: This can include hiring a private investigator, obtaining police reports, purchasing medical records, and gathering other critical evidence.
Evidence and Exhibit Costs: The cost of creating visual aids, charts, and presentations for mediation or trial.
Travel Expenses: If attorneys or witnesses need to travel for depositions, hearings, or trial.

These costs can easily range from a few thousand dollars in a simple case to well over $100,000 in a complex medical malpractice or product liability lawsuit.

Who Pays for These Costs and When?

Reputable wrongful death law firms have the financial resources to advance all case costs on behalf of their clients. This means the firm pays for everything as the case progresses, and you do not have to pay anything out of pocket.

How these advanced costs are repaid from the settlement is a critical detail in your fee agreement. There are two primary methods:

Costs Deducted After the Attorney’s Fee: The attorney’s percentage is calculated from the gross settlement amount. Then, the case costs are subtracted from the client’s remaining portion.
Costs Deducted Before the Attorney’s Fee (Off the Top): The case costs are first subtracted from the gross settlement amount. The attorney’s fee is then calculated from the remaining net amount.

The second method is more favorable to the client. Let’s look at an example with a $500,000 settlement, $50,000 in costs, and a 33.3% attorney fee.

Method 1 (Costs After Fee):
- Attorney Fee: $500,000 x 33.3% = $166,500
- Client’s Share Before Costs: $500,000 – $166,500 = $333,500
- Client’s Net Recovery: $333,500 – $50,000 (costs) = $283,500
Method 2 (Costs Off the Top):
- Settlement Minus Costs: $500,000 – $50,000 = $450,000
- Attorney Fee: $450,000 x 33.3% = $149,850
- Client’s Net Recovery: $450,000 – $149,850 = $300,150

As you can see, having costs taken “off the top” results in a significantly higher net recovery for the client. This is a key question to ask any attorney you consider hiring.

What Happens if You Lose?

This is another vital point to clarify in the fee agreement. In a true contingency fee arrangement, if you lose the case, you owe no attorney fees. However, the responsibility for the advanced case costs can vary. Most reputable personal injury firms will waive the case costs if the case is lost, meaning you owe absolutely nothing. Some firms, however, may require the client to repay the costs. Be sure you have a clear understanding of this policy before signing any agreement.

The Role of an Economist and Other Experts in Determining Damages

The high cost of expert witnesses often surprises families, but their involvement is essential for proving a wrongful death case and maximizing its value. These professionals provide objective, evidence-based opinions that are necessary to establish liability and quantify the full extent of a family’s losses. The investment in top-tier experts directly correlates with the strength of the claim.

Calculating Economic Damages

One of the most critical experts in any wrongful death case is a forensic economist. Their job is to calculate the tangible, financial losses the family has suffered and will suffer in the future due to their loved one’s death. This is not guesswork; it is a detailed calculation based on evidence and established methodologies.

The economist will analyze factors such as:

Lost Income and Wages: Projecting the decedent’s earnings over their expected work-life, including raises, promotions, and inflation.
Loss of Benefits: Calculating the value of lost health insurance, retirement contributions (like a 401(k) match), and pension benefits.
Loss of Services: Assigning a monetary value to the services the decedent provided to the family. This can include childcare, home maintenance, cooking, financial management, and transportation. The economist determines what it would cost to hire someone to perform these tasks.
Loss of Inheritance: Projecting the amount the decedent would have likely accumulated and left to their heirs.

The economist’s final report provides a concrete, defensible number that serves as the foundation for the economic damages portion of the lawsuit.

Quantifying Non-Economic Damages

While an economist calculates financial losses, a wrongful death claim also seeks compensation for intangible, human losses. These are known as non-economic damages and are meant to compensate the family for:

Loss of Companionship, Society, and Comfort: For the spouse’s loss of their partner.
Loss of Parental Guidance and Nurturing: For the children’s loss of their parent.
Sorrow, Mental Anguish, and Grief: The emotional suffering of the surviving family members.

While no amount of money can replace a loved one, the legal system uses financial awards to acknowledge the profoundness of these losses. In some cases, psychologists or grief counselors may be called as experts to testify about the severe emotional impact on the family.

Other Critical Experts and Their Costs

Depending on the facts of the case, several other experts may be required:

Accident Reconstructionist: In cases involving car, truck, or workplace accidents, this expert uses physics and engineering principles to determine exactly how the incident occurred, establishing fault.
Medical Experts: In a medical malpractice case, doctors in the same specialty are needed to testify that the defendant-doctor breached the standard of care and that this breach caused the patient’s death. Multiple medical experts are often necessary.
Vocational Experts: This expert can testify about the decedent’s career path, earning potential, and opportunities for advancement, strengthening the economist’s calculations.
Product Engineers: In a case involving a defective product, an engineer is needed to analyze the product’s design and identify the flaw that made it unreasonably dangerous.

The fees for these experts can range from $300 to over $1,000 per hour. While expensive, their testimony is often the difference between winning and losing a case.

How a Settlement or Verdict is Distributed

After a successful negotiation or trial, the defendant’s insurance company will issue a check for the total settlement or verdict amount. This money is not paid directly to the family. It is first deposited into the law firm’s client trust account, also known as an IOLTA account. From there, the funds are distributed in a specific, transparent order.

Step 1: The Gross Settlement Amount

This is the total, lump-sum amount agreed upon in the settlement or awarded by the jury. For this example, let’s assume a gross recovery of $1,000,000.

Step 2: Repayment of Liens

Before the family or the attorney receives any money, certain debts and liens against the settlement must be paid. A lien is a legal right or claim against a property or, in this case, a settlement fund. Common liens in wrongful death cases include:

Medical Liens: From hospitals, doctors, and ambulance services for treatment provided to the decedent before their death.
Health Insurance Liens: If a health insurance company (including Medicare or Medicaid) paid for medical care related to the final injury, they have a right to be reimbursed from the settlement.

A key role of your attorney is to negotiate these liens down. For example, if there is a $100,000 hospital lien, your lawyer may be able to negotiate it down to $60,000, putting an extra $40,000 back into the total pot. Let’s assume liens are negotiated down to $75,000.

Step 3: Deduction of Case Costs

Next, the law firm is reimbursed for all the case costs it advanced. This includes the fees for expert witnesses, court reporters, filing fees, and everything else. Let’s assume the total case costs were $100,000.

Step 4: Calculation of Attorney’s Fees

The attorney’s fee is now calculated based on the method outlined in the fee agreement. We will use the more client-friendly “costs off the top” method and a 40% fee for a case that went through litigation.

Gross Settlement: $1,000,000
Minus Liens: -$75,000
Minus Case Costs: -$100,000
Adjusted Amount for Fee Calculation: $825,000
Attorney’s Fee: $825,000 x 40% = $330,000

Step 5: The Net Amount to the Beneficiaries

The final remaining amount is the net recovery that is distributed to the beneficiaries (the surviving family members) or the estate.

Adjusted Amount: $825,000
Minus Attorney’s Fee: -$330,000
Net to Family: $495,000

Your attorney will provide you with a settlement statement or closing statement that details every single one of these deductions, providing a transparent accounting of where all the money went.

Factors That Influence the Total Cost and Value of a Case

No two wrongful death cases are identical. The total litigation costs and the ultimate value of the claim can be influenced by a wide range of factors. An attorney evaluates these elements when deciding whether to take a case and when formulating a legal strategy.

Complexity of the Case

The more complex the facts and legal issues, the more expensive the case will be to prosecute.

Simple Case: A rear-end car accident where liability is clear may require minimal investigation and only a medical expert and an economist.
Complex Case: A medical malpractice claim against a hospital involving multiple doctors and nurses, or a product liability case against a large corporation, will require numerous expert witnesses, extensive document review, and many depositions, driving costs up significantly.

The Defendant’s Willingness to Settle

The defendant’s and their insurance company’s approach to the case plays a huge role.

Early Settlement: If the defendant acknowledges fault and their insurer makes a fair settlement offer early on, the case costs will be relatively low.
Aggressive Defense: If the defendant denies all responsibility and fights the case at every turn, it will have to proceed through the entire litigation process, potentially to a trial. This lengthy process dramatically increases costs.

Jurisdiction and Venue

Where the lawsuit is filed matters. Different states and even different counties within a state can have varying court rules, filing fees, and jury pools. Some jurisdictions are known to be more favorable to plaintiffs, which can influence an insurance company’s willingness to offer a fair settlement.

The Strength of the Evidence

The quality and clarity of the evidence supporting your claim are paramount. A case with a “smoking gun,” such as a video of the incident or an internal company memo admitting fault, is much stronger and may settle faster and for a higher amount. Cases that rely on conflicting witness testimony or circumstantial evidence may require more extensive expert analysis to prove, increasing costs.

The Damages Involved

The potential value of a case is directly tied to the damages. A case involving the death of a 40-year-old surgeon with a spouse and three young children will have a much higher value in terms of economic damages (lost wages) than a case involving a retired, unmarried individual. This higher potential value can justify a larger investment in case costs, as the potential return is greater.

Questions to Ask a Lawyer During Your Initial Consultation

The initial consultation with a wrongful death attorney is a critical opportunity for you to gather information and assess if the lawyer and their firm are the right fit for your family. This meeting is almost always free of charge. You should come prepared with a list of questions to ensure you fully understand the financial aspects of the relationship.

Questions About the Fee Structure

What is your contingency fee percentage?
Is this percentage based on a sliding scale? If so, at what points in the litigation process does it change?
Could you provide an example of how your fee would be calculated on a hypothetical settlement?
Can I have a copy of your standard fee agreement to review before I make a decision?

Questions About Case Costs

How does your firm handle case costs? Do you advance all of them?
Are the case costs deducted from the settlement before or after your attorney’s fee is calculated?
If we do not win the case, am I responsible for repaying the advanced case costs?
Based on your experience with similar cases, can you provide a rough estimate of what the costs might be for a case like mine?

Questions About Experience and Resources

How many wrongful death cases has your firm successfully handled?
Who will be the primary attorney working on my case, and what is their experience level?
Does your firm have the financial resources to hire the best experts needed and take my case all the way to trial against a large corporation or insurance company if necessary?
Can you provide references from past clients or examples of results in similar cases?

A trustworthy attorney will answer these questions directly and transparently. If a lawyer is vague about their fees, cannot clearly explain how costs are handled, or pressures you to sign an agreement on the spot, you should consider it a red flag.

Conclusion

The financial mechanics of a wrongful death lawsuit are designed to provide families with access to the legal system without any upfront financial risk. The contingency fee model ensures that your attorney is a dedicated partner, fully invested in achieving the best possible outcome for your family. Understanding the clear distinction between the attorney’s percentage-based fee and the separate case costs is essential for managing expectations about the final distribution of a settlement or verdict. The fee agreement you sign is the most important document governing this financial relationship, and it should be reviewed with care.

While no legal action can replace a loved one, a successful wrongful death claim can provide the financial resources necessary for your family to find stability and security in a difficult new reality. The compensation recovered is intended to cover lost income, final expenses, and the profound personal loss your family has endured. It is a vital tool for holding negligent parties accountable and ensuring your family is cared for in the future.

Do not let financial concerns stop you from exploring your legal options. The time to file a wrongful death claim is limited by law, often to just one or two years from the date of death, depending on your state’s statute of limitations. Acting promptly is critical to preserving your rights. We encourage you to contact a qualified wrongful death attorney for a free, no-obligation consultation to discuss the specifics of your situation and learn how they can help your family seek justice. Contact us today for a free evaluation. If you’ve lost a loved one due to someone else’s negligence, we understand the emotional and legal challenges you’re facing. We are here to guide you through the process, helping you make informed decisions during this difficult time. Reach out now, and let’s work together to pursue justice for your family.