Changing Wrongful Death Lawyers in California

Families can change lawyers after a death

Losing someone and then losing confidence in the lawyer handling the case is a hard combination. California law lets you make a change. Under Fracasse v. Brent, a client may discharge a lawyer at any time, and a contingency lawyer who is let go is limited to the reasonable value of the work, payable only from a recovery.

Wrongful death cases often have several clients: a spouse, children, sometimes parents. Each person who signed the fee agreement can decide to switch. It is simpler when the family agrees, because the claims usually move together. Our California guide to switching lawyers covers the basic process.

Who can bring the case in California

Code of Civil Procedure § 377.60 lists who may file a wrongful death action. It starts with the surviving spouse or domestic partner, children and the children of deceased children. If there are no descendants, the people who would inherit under intestate succession may sue. Others can qualify if they depended on the person who died, including a putative spouse, stepchildren and parents. A minor who lived in the home for the prior 180 days and depended on the decedent for half or more of their support can also qualify.

A new lawyer has to make sure every person with standing is accounted for. Under § 377.61, the court decides how an award is divided among the people entitled to it. More on standing in our FAQ on who can file a wrongful death lawsuit.

The survival claim, and a date that matters

A death case usually has two parts. The wrongful death claim compensates the family for their own losses. The survival claim is the decedent’s own claim, brought by the personal representative of the estate or, if there is none, the successor in interest, under Code of Civil Procedure § 377.30.

Under the current text of § 377.34, survival damages may include the decedent’s pain, suffering or disfigurement only if the action was filed on or after January 1, 2022, and before January 1, 2026, or received a trial preference before 2022. For cases filed outside that window, the statute limits survival damages to losses the decedent had before death, such as medical bills and lost wages, plus any punitive damages the decedent could have recovered.

That should not stop you from switching. It does mean that when a new lawyer takes over a case filed within that window, the case should continue under the existing filing. Ask any new lawyer to confirm the filing date and the estate’s status. Our page on survival actions versus wrongful death explains the difference.

What a new lawyer must catch up on

• Probate status: whether a personal representative was appointed, or a successor in interest declaration is needed.
• The death certificate, autopsy report and coroner’s investigation file.
• Police, CHP, Cal/OSHA or facility reports, depending on how the death happened.
• Evidence specific to the incident, such as vehicle data, truck logs or nursing facility records, with preservation letters sent if they were missing.
• Financial records showing the support and household services the decedent provided.
• Every heir’s contact information and whether anyone has signed with a different firm.

We also look at what the first firm told the defense. Discovery answers about the decedent’s health, income and family relationships are often already on file. If they are incomplete or wrong, they should be corrected before depositions.

Deadlines in California death cases

The general deadline to file is two years under Code of Civil Procedure § 335.1. If a public entity may be responsible, such as a city bus, a county hospital or a dangerous road, a government claim is usually due within six months under Government Code § 911.2. See our FAQ on the California wrongful death statute of limitations.

What the family pays when switching

Bringing the case to us does not raise the fee your family pays. The former lawyer’s fair claim for their work is paid out of our share. Costs that firm advanced, such as experts or the autopsy file, are normally repaid from the recovery like any case cost. If there is no recovery, the family owes no fees or costs. If the family already signed a release and the settlement was paid, that release generally closes the claim, and we cannot help reopen it.

We notify the former lawyer, request the full file, file the substitution if a case is pending, and handle the old firm’s fee claim. Free reviews in English or Spanish at (310) 552-6959.

Sources

1. Fracasse v. Brent (1972) 6 Cal.3d 784 (scocal.stanford.edu)
2. Cal. Code Civ. Proc. § 377.60
3. Cal. Code Civ. Proc. § 377.61
4. Cal. Code Civ. Proc. § 377.30
5. Cal. Code Civ. Proc. § 377.34
6. Cal. Code Civ. Proc. § 335.1
7. Cal. Gov. Code § 911.2
8. Cal. Code Civ. Proc. § 284
9. Cal. Civ. Code § 1541