If someone you love was killed by another person’s carelessness, and you are already thinking about a trial, take a breath. A trial is one possible ending to a wrongful death case, not the whole story, and not the most common one. Most of these cases in Massachusetts resolve before a jury ever hears them. Still, families deserve to know what a trial looks like, because the possibility of one shapes every decision along the way. This walks you through it, honestly, from the first strategic choice to the last check that clears through probate.
Most cases settle, and that shapes everything
Start here. The large majority of wrongful death claims in Massachusetts settle without a trial. That is not a failure of nerve. It is often the right result. A settlement is certain, private, and faster, and it spares a grieving family months of reliving the loss in a public courtroom. A trial is none of those things.
So why does anyone try a case? Because the other side will not pay what the claim is worth, or because they deny they did anything wrong at all. When the gap is that wide, a jury decides. Knowing your lawyer is genuinely ready to try the case is also what tends to move a fair number onto the table. An insurer reads the difference between a lawyer preparing for trial and one hoping to avoid it. For more on how often these cases actually reach a courtroom, see whether wrongful death cases go to trial in Massachusetts.
Deciding whether to try the case or settle it
This is your decision, made with your lawyer’s honest counsel. The wrongful death claim belongs to the estate and is brought by the personal representative, the person appointed by the Probate and Family Court to act for the estate. See M.G.L. c. 229, § 2. That person signs off on a settlement or the choice to go forward, usually after talking it through with the family who will share in any recovery.
A good lawyer lays out the real trade. What is the strongest version of the defense? How clean is the liability? What are the risks a jury sees it differently? Be skeptical of anyone who hands you a confident number early. There is no meaningful average for a human life, and value is built from the specific facts and records, not pulled from a chart. If the offer reflects the true strength of the case, settling is often wise. If it does not, trial exists for a reason.
How long it takes to reach trial
Longer than most families expect. A wrongful death case filed in Massachusetts Superior Court commonly takes two to three years to reach trial, sometimes more in a complex medical or product case. The time goes into the work that makes a trial winnable.
- Investigation and filing. Gathering records, identifying defendants, and appointing the personal representative through probate.
- Discovery. Written questions, document production, and depositions, where witnesses answer under oath before trial.
- Experts. Retaining and disclosing the specialists who will explain cause and fault to a jury.
- Motions and the trial list. Pretrial motions, then a place on the court’s trial calendar, which can shift.
Medical malpractice cases carry an extra early step: an offer of proof to a screening tribunal under M.G.L. c. 231, § 60B before the case moves ahead. Claims against a public employer add a written presentment requirement under the Tort Claims Act, M.G.L. c. 258. The full arc is laid out in the wrongful death claim process.
Choosing a jury
Trial opens with jury selection, called voir dire. A pool of citizens comes in, and the judge and lawyers work to seat a fair jury, often more than the number who will finally deliberate, so alternates can cover for anyone excused mid-trial. Civil juries in Superior Court are typically smaller than the criminal twelve.
The questions are not meant to pry for its own sake. They surface bias. Has a juror lost someone in a similar way? Does anyone work in insurance or medicine in a way that would color how they hear the evidence? Each side can remove a limited number of jurors without giving a reason, and any number for a reason the judge accepts. Families sometimes find this part unsettling, watching strangers get chosen to judge the case. It is ordinary, and it matters. The people seated here decide the facts.
Opening statements
Once the jury is sworn, each side gives an opening statement. Your lawyer goes first because the plaintiff carries the burden of proof. An opening is a roadmap, not an argument. It tells the jury what the evidence will show: who your family member was, what the defendant did, and how those two facts connect.
The defense may open right after, or wait until its own case begins. Listen for what they concede and what they contest. That tells you where the fight will be.
The plaintiff’s case: proving what happened and why it matters
Now your side puts on its evidence. Two things have to come through: that the defendant was negligent, and that the negligence caused the death. Massachusetts law recognized the family’s right to recover for a wrongful death as a matter of common law in Gaudette v. Webb, 362 Mass. 60 (1972), and the case has grown from there.
The liability and causation witnesses
These are often experts. In a crash case, a crash reconstructionist reads the physical evidence, the skid marks, the vehicle damage, the data, and tells the jury how the collision happened and who caused it. In a medical case, a physician explains the standard of care and how the defendant departed from it. Causation can be its own battle, especially in medicine, where the question may be whether better care would have changed the outcome. Massachusetts allows recovery in some medical cases for a lost chance of a better result, recognized in Matsuyama v. Birnbaum, 452 Mass. 1 (2008), which matters when a defendant argues the person might have died anyway.
The family and the loss
Then there are the witnesses no expert can replace: you. Family testimony is not a formality. Under the wrongful death statute, the losses a jury may consider include the loss of the person’s care, companionship, guidance, and counsel, not only economic support. A jury cannot value what it does not understand, and only the people who lived with the loss can describe it. A spouse talks about the empty side of the bed. A child talks about who taught them to drive. This testimony is hard to give and central to the case. Your lawyer will prepare you, and will not ambush you with it. What that loss is worth, and how it is proven, is covered in wrongful death damages in Massachusetts.
A separate survival claim under M.G.L. c. 228, § 1 may also be part of the case, covering the conscious pain and suffering the person endured before death. That evidence comes in through medical records and, sometimes, witnesses to the final hours.
The defense case
When the plaintiff rests, the defense responds. Expect two lines of attack.
First, causation. The defense often concedes something went wrong but argues it did not cause the death, or that the death was coming regardless. Their own experts take the stand to say so, and your lawyer cross-examines them. Second, fault. This is where comparative negligence enters. The defense tries to shift responsibility onto the person who died: the pedestrian stepped out, the driver was speeding, the patient ignored instructions. They do not have to prove the person was entirely at fault. They only need the jury to assign some share, because in Massachusetts that share reduces or can eliminate the recovery.
It is painful to sit through a defense that blames your loved one. It is also predictable, and your lawyer plans for it long before trial.
Closing arguments
After the evidence closes, each side sums up. Closing is where the lawyers finally argue, tying the testimony together and telling the jury what it means and what verdict follows. Your lawyer connects the roadmap from opening to the proof the jury actually heard, and confronts the defense’s fault argument head on. This is advocacy, direct and human, not a recitation of law.
The judge’s instructions and the burden of proof
Before the jury leaves to deliberate, the judge instructs them on the law. The most important piece for you to understand is the burden of proof. This is a civil case, so the standard is a preponderance of the evidence, meaning more likely than not. Picture a scale that only has to tip.
That is far lower than the criminal standard of beyond a reasonable doubt. Families sometimes carry the criminal standard in mind because they have seen it on television or lived through a related criminal matter. In a wrongful death trial, you do not have to erase all doubt. You have to show it is more likely than not that the defendant caused the death. The judge also instructs the jury on how to handle fault, which sets up the verdict.
The verdict and how comparative negligence changes it
The jury answers specific questions on a verdict form. Was the defendant negligent? Did that negligence cause the death? What are the damages? And, if it is in the case, what percentage of fault belongs to the person who died?
That last answer controls the money under M.G.L. c. 231, § 85. Massachusetts uses a modified comparative negligence rule with a 51% bar. If the jury assigns your loved one some fault but 50% or less, the award is reduced by that percentage. If it puts the person’s share at 51% or more, the recovery is barred entirely. A single point can be the whole case. This is why the fault fight matters as much as the damages, and it is explained in more depth in comparative negligence in Massachusetts wrongful death cases.
What happens after the verdict
A verdict is not always the end. The losing side may file post-trial motions or appeal, which can add time before anything is paid. Massachusetts also allows punitive damages in wrongful death cases where the conduct was grossly negligent or worse, and the Supreme Judicial Court upheld a substantial punitive award in Aleo v. SLB Toys USA, Inc., 466 Mass. 398 (2013). Those awards draw appeals of their own.
Once a judgment is final, it has to be collected, usually from an insurer, sometimes from the defendant directly. The money then flows back through the estate. The personal representative distributes the wrongful death proceeds to the statutory beneficiaries, the surviving spouse, children, or next of kin, under the shares the law sets, with the court supervising where required. This is why the probate side of the case, appointing the representative and administering the estate, runs alongside the litigation from the beginning. The whole picture, start to finish, is in the Massachusetts wrongful death guide.
Questions families ask
Will we have to testify?
Probably, if the case goes to trial. Family testimony about who your loved one was and what the loss means is some of the most important evidence a jury hears, and no expert can give it. Your lawyer will prepare you carefully and will not surprise you on the stand. Many families find it hard and also meaningful.
How long will a trial itself last?
Most wrongful death trials run somewhere from a few days to a couple of weeks, depending on how many experts and witnesses are involved. A complex medical or product case takes longer. The years-long part is the preparation before trial, not the trial itself.
What if my loved one was partly at fault?
You can still recover, as long as their share of fault is 50% or less; the award is just reduced by that percentage. If a jury assigns them 51% or more, recovery is barred. Being partly at fault does not automatically end a case, but it is the defense’s main target, so it has to be taken seriously.
Why does the standard of proof matter?
Because it is lower than people expect. A civil trial only requires you to show the defendant more likely than not caused the death, not to prove it beyond a reasonable doubt like a criminal case. That difference works in a grieving family’s favor.
Should we settle or go to trial?
It depends on the offer against the real strength of the case, and it is your decision with honest advice from your lawyer. Settlement gives certainty and privacy. Trial exists for when the other side will not pay what the case is worth. Being genuinely ready for trial is often what produces a fair settlement in the first place.
Who actually brings the case?
The personal representative of the estate, appointed by the Probate and Family Court, brings the wrongful death claim on behalf of the family beneficiaries. Getting that person appointed early is one of the first steps, because the case cannot move without them.
You do not have to figure out whether your family’s case is one that settles or one that should be tried. That is our job, and we will tell you straight. We handle wrongful death cases on a contingency basis, so there is no fee unless we recover. To talk it through, call 617-415-2100.
Related guides
Complete guide · Who can file · What families recover · The claim process
Attorney at Scalli Murphy Law, P.C., practicing law in Massachusetts since 1999 with a focus on serious injury and wrongful death cases. This overview is general information and not legal advice.
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