Defendants’ Attempts to Delay Wrongful Death Cases while Estate is being Set Up

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Attorney Jeb Butler is here to talk about moving wrongful death cases forward as fast as possible.

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► I’m Jeb Butler at the Butler Law Firm. And today we’ll talk about moving wrongful death cases forward as fast as possible in a court system that is typically quite slow. One of the delaying tactics that we’ve seen defendants try to use in our wrongful death cases recently is to stall the entire case while we wait on the probate court to appoint an administrator of the decedents’ estate. So in Georgia, as we’ve discussed in other videos, when someone dies and you bring a lawsuit about it, there are typically two kinds of claims that you bring. One is a wrongful death claim and one is the estate claim. Now, the wrongful death claim is brought by certain people that are specified under Georgia law. And there’s usually no problem in going ahead and filing that and getting it moving pretty quickly. The estate claim is a little bit more cumbersome because you have to set up an estate in the probate court of Georgia for the person who died.
► And then once an estate is set up, an administrator, typically a family member of the person who died, has to be appointed. That administrator is the person who’s in charge of the estate and the one who has the right to bring the lawsuit on the estate’s behalf. But sometimes probate courts, particularly in the metropolitan Atlanta area are a little bit slow. So at our firm at least, we don’t always like to wait until the probate process is fully complete before filing the death case. Sometimes defendants will use that as an excuse to try to slow everything down. We’ve seen a couple motions about that in the not too distant past. And we’ll go over some of that today. What often happens is that the defendant will seek a stay, which just is a fancy legal order for meaning a pause in the case until the administrator gets appointed.
► Now, there’s no practical reason for that. It shouldn’t happen. It just slows things down, but often delays the goal of defendants. So they file these motions, seeking to stay the case or pause the case until the administrator is appointed by the probate court. We’ve had to deal with this a couple times, once in the federal court, in the Northern District of Georgia in a truck case, and we were able to argue it, and we won the motion. What we’re looking at here is the district court’s order. And as you can see, this is a motion to stay filed by the defendants. So the defendant truck company is trying to pause the case while we set up the estate. And this is what the court says. The court says, “Based on the representations of counsel for the plaintiff,” that’s our law firm about how we’re going to have the right person appointed, “the court denies defendant’s motion to stay.” So this is a good thing.
► It means we got to go forward in this case. We didn’t have to wait at least on that, but it’s also in a good clean written order that we can cite in the future. We can say to a future judge, when defendants try this delay tactic, “Hey, look at this order from the US District Court denying such a request.” So it has some presidential value. You can use it again in the future, basically. This was in federal court. We’ve seen it also in state court. This is one from the State Court of Gwinnett County. And it was similar sort of substantively, but the form was different. Instead of asking for a stay, the defendants asked for our whole case to get dismissed because the administrator hadn’t been appointed yet. You can see that this is a ruling on our motion to dismiss.

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