Do I Have to Pay If I Lose My Wrongful Death Case

TL;DR

In most wrongful death cases, you do not have to pay your attorney’s legal fees if you lose. This is because personal injury and wrongful death lawyers typically work on a contingency fee basis, which means their payment is “contingent” on winning the case. If there is no financial recovery, you owe them no fee for their time. However, you might still be responsible for paying for out-of-pocket case costs, such as court filing fees and expert witness payments. This critical detail depends entirely on the specific terms of the written agreement you sign with your law firm.

Key Highlights

Most wrongful death attorneys use a contingency fee agreement.
This agreement means you pay no attorney fees unless you win a settlement or verdict.
Even if you lose, you may still be responsible for “case costs” or “litigation expenses.”
Case costs include expenses like expert witness fees, court filing fees, and deposition costs.
Your written fee agreement must clearly state who pays for these costs if the case is lost.
Always ask a potential attorney to explain their policy on case costs before you hire them.

The unexpected loss of a family member creates a profound emotional void. Alongside the grief, families often face sudden and serious financial pressures. According to the Centers for Disease Control and Prevention (CDC), the total economic cost of fatal injuries in the United States exceeds hundreds of billions of dollars annually, a figure that includes medical expenses, lost wages, and a reduced quality of life for surviving family members. These staggering numbers highlight the tangible financial disruption that follows a personal tragedy, leaving many families uncertain about their future stability.

When a death is caused by the negligence or misconduct of another party, the law provides a path for financial relief through a wrongful death lawsuit. This is a civil action, distinct from any criminal charges, brought by the personal representative of the deceased’s estate on behalf of surviving family members, like a spouse, children, or parents. The goal is to secure compensation for damages such as lost income, loss of companionship, funeral and burial expenses, and other related losses. The legal standard in these civil cases is a “preponderance of the evidence,” meaning it is more likely than not that the defendant is responsible, which is a lower bar than the “beyond a reasonable doubt” standard used in criminal court.

For many families, the thought of hiring a lawyer and starting a lawsuit is daunting, primarily due to the fear of high legal bills. The concern that a lost case could lead to a mountain of debt prevents many from seeking the justice they deserve. This is precisely why the legal profession developed a specific payment structure for these types of cases. Understanding how this structure, known as a contingency fee agreement, works is the first step toward empowering yourself. It separates the valid fear of cost from the fundamental right to hold a responsible party accountable.

Understanding the Contingency Fee Agreement: Your Financial Shield

The most common arrangement for funding a wrongful death lawsuit is the contingency fee agreement. This structure was designed to provide access to the justice system for everyone, regardless of their financial situation. It allows a grieving family to secure high-quality legal representation without paying any money upfront.

What is a Contingency Fee?

A contingency fee is a payment arrangement where the attorney’s fee is conditional on the outcome of the case. In simple terms: if your lawyer does not win your case, you do not pay them a fee for their work. The lawyer agrees to take on the financial risk of the litigation. They invest their time, resources, and expertise into building and arguing your case with the understanding that they will only be compensated if they succeed in securing a financial settlement or a court award for you.

This “no win, no fee” model aligns the interests of the attorney with those of the client. The lawyer is highly motivated to achieve the best possible result because their payment depends directly on it. This system gives families a powerful ally who is just as invested in a successful outcome as they are.

How are Contingency Percentages Determined?

When you win, the attorney receives a pre-agreed-upon percentage of the total recovery. This percentage can vary but typically falls between 33.3% and 40%. Several factors can influence the exact percentage:

Case Complexity: A straightforward case with clear liability, like a rear-end car collision, might command a lower percentage than a complex medical malpractice or product liability case that requires extensive investigation and multiple expert witnesses.
Timing of Resolution: Some agreements have a tiered structure. For example, an attorney might take 33.3% if the case settles before a lawsuit is filed, but the percentage might increase to 40% if the case proceeds through litigation and goes to trial. This reflects the significant increase in work, time, and resources required for a trial.
State Regulations: Some states have laws that cap the percentage an attorney can charge in certain types of cases, such as those involving medical malpractice or claims against government entities.

The percentage is always calculated from the gross recovery amount, which is the total sum of money obtained from the defendant before any expenses are deducted.

The Written Agreement: Your Most Important Document

A contingency fee arrangement must always be put in writing. This signed document is a legally binding contract that outlines the exact terms of your relationship with the attorney. It is one of the most important documents you will sign, and you should never proceed without a clear and comprehensive one.

Before you sign, make sure the agreement explicitly details:

The exact percentage the attorney will take.
Whether the percentage changes at different stages of the case (e.g., pre-litigation vs. trial).
How case costs and expenses will be handled (more on this next).
What happens to costs if the case is lost.
The scope of the attorney’s representation.

Do not be afraid to ask questions. A reputable attorney will gladly take the time to walk you through every clause of the agreement to ensure you are comfortable and fully understand the terms.

The Critical Difference: Attorney’s Fees vs. Case Costs

While the contingency fee model protects you from paying your lawyer’s salary if you lose, it does not always cover all the expenses associated with building a strong case. This is where many people get confused. There is a crucial distinction between “attorney’s fees” and “case costs.” Understanding this difference is essential to knowing your potential financial responsibility.

Defining Attorney’s Fees

Attorney’s fees are what you pay the lawyer and their legal team for their work. This includes their time, legal expertise, skill, and labor. It covers the hours they spend on activities like:

Investigating the incident
Interviewing witnesses
Drafting legal documents and court pleadings
Negotiating with insurance companies and opposing counsel
Arguing motions in court
Preparing for and conducting a trial

Under a contingency fee agreement, this is the portion you do not pay if you lose the case. The law firm absorbs the cost of their own labor as a loss.

What are Case Costs and Expenses?

Case costs, also known as litigation expenses, are the out-of-pocket funds a law firm pays to third parties to move your case forward. These are the tangible costs of building and proving your claim. Think of it like building a house: the attorney is the architect and builder (their fee), but you still have to pay for the lumber, concrete, and windows (the costs).

Common case costs in a wrongful death lawsuit include:

Court Filing Fees: Every court charges a fee to file a new lawsuit.
Service of Process Fees: The cost to have a professional process server formally deliver the lawsuit to the defendant.
Expert Witness Fees: Payments to specialists (e.g., doctors, engineers, economists) to review the case, write reports, and provide testimony.
Deposition Costs: Fees for court reporters to transcribe sworn testimony taken before trial.
Medical Record Retrieval Fees: Hospitals and clinics charge for copies of medical records.
Police and Accident Report Fees: The cost to obtain official reports.
Trial Exhibit Costs: The expense of creating visual aids, charts, and presentations for a jury.
Travel Expenses: Costs for travel related to depositions, witness interviews, or court appearances.

These costs can easily run into the tens of thousands of dollars, and in highly complex cases, they can exceed $100,000.

Who Pays for Case Costs if You Lose?

This is the most important question you can ask an attorney. The handling of case costs if a lawsuit is unsuccessful varies from one law firm to another. There are generally two scenarios, and this must be specified in your written fee agreement:

The Law Firm Covers the Costs: Some firms, often larger and more established ones, will agree to cover all case costs themselves, even if the case is lost. In this arrangement, you truly walk away owing nothing. The firm takes on 100% of the financial risk.
The Client is Responsible for the Costs: Other firms may require the client to reimburse the firm for all the case costs incurred, even if there is no recovery. The firm fronts the money to pay these expenses as the case progresses, but if you lose, you will receive a bill for the total amount.

Many firms offer a hybrid approach. They may agree to waive the costs if the case is lost but will be reimbursed for them from the settlement if the case is won. It is absolutely vital that you have a clear, unambiguous statement in your fee agreement that explains what happens to these costs if you lose. Do not sign an agreement until you are certain you understand this term.

A Deeper Look at Common Case Costs in a Wrongful Death Lawsuit

To fully appreciate the financial scope of a wrongful death claim, it helps to understand where the money for case costs goes. These are not arbitrary fees; they are necessary investments in building a persuasive argument to present to an insurance company or a jury.

Expert Witness Fees: The Highest Expense

In almost any wrongful death case, expert witnesses are essential, and they are often the single largest case-related expense. These are professionals who are paid for their time and expertise to analyze evidence and offer a qualified opinion. Their testimony can make or break a case.

Examples of experts include:

Medical Examiners or Forensic Pathologists: To confirm the cause of death and link it directly to the defendant’s actions.
Accident Reconstructionists: To analyze physical evidence from a car crash or other incident and explain how it happened.
Engineers: To testify about a defective product, a structural failure in a building, or unsafe road design.
Economists: To calculate the full extent of financial loss, including the deceased’s lost future income, benefits, and services to the family. This is a critical component of the damages claim.
Vocational Experts: To assess the deceased’s earning potential and career trajectory.

Top-tier experts can charge hundreds of dollars per hour for their work. The total cost for a single expert to review records, write a report, and provide deposition and trial testimony can easily be $10,000 to $25,000 or more. A complex case may require three or four different experts, causing costs to escalate quickly.

Court and Administrative Fees

These are the standard operating costs of using the legal system. While smaller than expert fees, they are unavoidable and add up over the life of a case.

Initial Filing Fee: Can range from $200 to $500 depending on the court.
Service Fees: Typically $50 to $150 per defendant to have them formally served with the lawsuit.
Motion Fees: Some courts charge a fee each time a significant motion is filed.
Jury Fees: If the case goes to trial, there is often a fee for requesting a jury.

Discovery Costs

“Discovery” is the formal pre-trial process where both sides exchange information and evidence. This is one of the most labor-intensive and expensive phases of litigation.

Depositions: This involves taking sworn, out-of-court testimony from witnesses, the defendant, and experts. A court reporter must be hired to create a verbatim transcript. A single deposition can cost anywhere from $500 to several thousand dollars, depending on its length. Videographers are also often hired to record depositions, adding another layer of expense.
Document Production: The cost of copying, scanning, and organizing thousands of pages of documents, such as medical records, employment files, or internal company memos.

Miscellaneous Expenses

A variety of other costs can arise during a lawsuit:

Mediation Fees: Many courts require parties to attend mediation with a neutral third party to try and settle the case. The mediator’s time is typically split between the parties and can cost several thousand dollars for a full-day session.
Travel Costs: If your lawyer, witnesses, or experts need to travel for depositions or court hearings, the costs for flights, hotels, and meals are considered case expenses.
Trial Exhibits: The cost of creating professional visual aids, such as large-scale photos, diagrams, animations, or models, to help explain complex information to a jury.

Alternative Fee Structures and Potential Financial Risks

While the contingency fee model is the standard for plaintiffs in wrongful death cases, it is helpful to be aware of other fee structures to have a complete understanding of legal billing. You should also be aware of a very rare but potential financial risk.

Hourly Rates and Retainers

This is the most traditional billing method. The lawyer charges the client a set hourly rate for all work performed on the case. The client is also usually required to pay an upfront “retainer,” which is a lump sum of money that the lawyer holds in a trust account and bills against. The client is responsible for paying these fees regardless of the case’s outcome. Defense attorneys hired by insurance companies are almost always paid on an hourly basis. For a family pursuing a wrongful death claim, this model is usually financially impossible, which is why the contingency fee model was created.

Flat Fee Arrangements

In a flat fee arrangement, the attorney charges a single, fixed price for a specific legal service. This is common for straightforward, predictable legal work like drafting a will, handling an uncontested divorce, or dealing with a simple traffic ticket. This structure is almost never used in wrongful death litigation because the amount of work required is highly unpredictable and can vary dramatically from one case to the next.

The Risk of Sanctions or Frivolous Lawsuit Claims

In extremely rare circumstances, a plaintiff could be ordered to pay the defendant’s legal fees. This can happen if a court determines that the lawsuit was “frivolous,” meaning it was filed in bad faith, with no supporting evidence, and for the purpose of harassing the defendant.

However, if you are working with a reputable and ethical arizona wrongful death attorney, this risk is virtually nonexistent. Experienced attorneys conduct a thorough investigation before ever filing a lawsuit. They will not take on a case unless they believe, based on the evidence, that it has legal merit. They are investing their own time and money and have no incentive to pursue a claim that has no chance of success.

How Case Costs Are Handled When You Win

If your case is successful, the attorney’s fees and the case costs are deducted from your total wrongful death settlement or award. The method used to calculate these deductions can make a significant difference in the amount of money you ultimately receive. This is another detail that should be clearly spelled out in your fee agreement.

Deducting Costs from Your Settlement or Award

There are two primary ways costs can be handled:

Costs Deducted Before the Fee is Calculated: In this method, the case costs are first subtracted from the gross settlement amount. The attorney’s contingency percentage is then calculated based on the remaining, lower number. This method is more favorable to the client.
Costs Deducted After the Fee is Calculated: Here, the attorney’s percentage is calculated from the gross settlement amount first. Then, the case costs are subtracted from the client’s remaining share. This method is more favorable to the attorney.

A Sample Settlement Breakdown

Let’s look at a hypothetical example to see the difference. Assume you win a $1,000,000 settlement, your attorney’s contingency fee is 33.3%, and the total case costs are $50,000.

Method 1: Costs Deducted BEFORE the Fee

Gross Settlement: $1,000,000
Subtract Case Costs: – $50,000
Net Amount for Fee Calculation: $950,000
Attorney’s Fee (33.3% of $950,000): $316,350
Your Net Recovery: $633,650 ($950,000 – $316,350)

Method 2: Costs Deducted AFTER the Fee

Gross Settlement: $1,000,000
Attorney’s Fee (33.3% of $1,000,000): $333,000
Remaining Amount: $667,000
Subtract Case Costs: – $50,000
Your Net Recovery: $617,000

As you can see, the calculation method resulted in a $16,650 difference in the client’s pocket. The best firms often use the first method, but you need to confirm this before signing an agreement.

The Importance of a Detailed Settlement Statement

When your case concludes, your attorney is required to provide you with a written settlement statement. This document should clearly and transparently break down all the numbers. It must show the total gross recovery, provide an itemized list of every single case cost, show the calculation of the attorney’s fee, and state the final net amount you will receive. Review this document carefully and ask questions about any item you do not understand.

Key Questions to Ask Your Attorney Before Signing Anything

Choosing an attorney is a significant decision. Before you commit, you should have a frank and open conversation about fees and costs. A trustworthy lawyer will welcome your questions and provide clear answers. Do not sign a fee agreement until you are satisfied with their responses.

Here is a checklist of essential questions to ask:

Do you work on a contingency fee basis for wrongful death cases? (The answer should be yes.)
What is your contingency fee percentage?
Does that percentage change if the case goes to trial? If so, what does it become?
This is the most important question: Who is responsible for paying the case costs if we lose the lawsuit?
If we win, are the case costs deducted from the total settlement before or after your percentage is calculated?
Can you provide a rough estimate of the total costs you anticipate for a case like mine?
Will I receive periodic updates on the costs as they are incurred throughout the case?
Besides the contingency fee and case costs, are there any other fees or charges I should be aware of?

The answers to these questions will give you a complete picture of your potential financial obligations and allow you to make an informed decision without any surprises down the road.

In the wake of a tragic loss, the last thing your family should worry about is how to afford justice. The contingency fee system is designed to remove this barrier, allowing you to pursue accountability without upfront financial risk. For the most part, if you lose your wrongful death case, you will not owe your attorney any fees for their work. This structure provides a powerful safety net for grieving families.

However, the key takeaway is that responsibility for case costs—the out-of-pocket expenses for experts, court fees, and depositions—is a separate issue. This critical detail is determined by your specific fee agreement. Some law firms will absorb these costs if the case is lost, offering complete financial protection. Others may require you to reimburse them, which could leave you with a significant bill. There is no substitute for reading your contract carefully and having a direct conversation with your potential attorney about this specific point.

Your primary action should be to seek clarity. Do not let fear or uncertainty stop you from exploring your legal options. Most reputable wrongful death lawyers offer a free, no-obligation consultation. Use this opportunity to tell your story, understand the strength of your case, and ask direct questions about their fee structure. A transparent attorney will provide a clear, written agreement that protects your interests. Remember that strict time limits, known as statutes of limitations, apply to filing wrongful death claims. Taking prompt action to get informed is a crucial step toward securing your family’s future and honoring your loved one’s memory. Contact us for free evaluation today.

Do I Have to Pay If I Lose My Wrongful Death Case?