How Defense Attorneys Try To Discredit Wrongful Death Claims In Illinois

At John J. Malm & Associates, we understand that filing a wrongful death lawsuit is one of the most difficult decisions a grieving family can make. When a loved one is lost due to someone else’s negligence—whether in a car crash, workplace accident, or medical error—the law in Illinois provides a way for families to seek justice and compensation. But while wrongful death claims are designed to hold the responsible party accountable, defense attorneys often employ aggressive tactics to undermine or discredit the case.

In this blog, we’ll explore the strategies defense attorneys use to weaken wrongful death claims in Illinois and how we fight back to protect our clients’ rights. From challenging causation to using procedural rules like the Dead-Man’s Act, the defense will try to poke holes in your claim. Here’s what you need to know—and how our experienced fatal accident lawyers prepare to counter these common defenses.

1. Arguing There Was No Duty of Care

One of the most fundamental ways a defense lawyer may try to defeat a wrongful death claim is by arguing that the defendant did not owe any legal duty to the decedent. In negligence-based claims, establishing that the defendant owed a duty of care is a critical first step.

For example, a driver owes a duty to operate their vehicle safely. A property owner has a duty to maintain reasonably safe conditions. But defense attorneys may try to argue that the decedent was a trespasser, or that the situation was so unforeseeable that no duty applied.

Why it matters: Without a legal duty, there is no negligence—and no liability. Illinois courts evaluate duty based on foreseeability, likelihood of harm, burden of preventing the harm, and the relationship between the parties.

2. Blaming Someone Else (or the Victim)

A common defense tactic is to shift the blame away from the defendant—either to the decedent or to a third party.

a) Comparative Fault

Under Illinois’ modified comparative negligence rule (735 ILCS 5/2-1116), if the decedent is found to be more than 50% at fault, the plaintiff recovers nothing. Defense attorneys often focus on the victim’s actions to argue partial or total fault—especially in pedestrian accidents, construction accidents, and medical malpractice cases.

b) The “Empty Chair” Defense

Defense lawyers may also point to a “phantom” third party who is not named in the lawsuit and claim that this party was solely responsible. This is known as the “empty chair” defense. While defendants don’t have to prove this third party’s liability outright, they need to present credible evidence that someone else caused the fatal injury.

3. Challenging Causation

Even if a duty existed and there was some form of breach, defense attorneys may argue that the defendant’s actions were not the actual cause of death. This tactic often involves presenting alternative causes of death or suggesting preexisting conditions were to blame.

For example, if someone dies in a car crash but had a serious underlying health condition, the defense may claim that the medical issue—not the crash—was the true cause.

Courts require expert testimony to prove or refute causation. A defense expert may testify that the death would have occurred regardless of the defendant’s actions. Without strong expert rebuttal, this can seriously weaken a wrongful death claim.

4. Using the Dead-Man’s Act

Illinois’ Dead-Man’s Act (735 ILCS 5/8-201) is a powerful evidentiary tool often used in wrongful death cases. The law prevents a survivor from testifying about conversations or events involving the deceased if the testimony benefits the survivor’s case.

That means a spouse or adult child may be prohibited from testifying about what the decedent said, intended, or did—unless there is independent corroboration. This can be devastating for families trying to explain the relationship or financial support the decedent provided.

Example: A widow cannot testify that her husband planned to retire early and help raise their grandchildren unless a third-party witness or document supports that claim.

5. Attacking the Plaintiff’s Standing or Authority

Wrongful death lawsuits in Illinois must be filed by the personal representative of the decedent’s estate (740 ILCS 180/2). Defense attorneys may challenge whether the plaintiff actually has the legal right to bring the claim.

They might argue:

• The plaintiff was not legally appointed by a court.
• The plaintiff lacks a familial relationship sufficient to claim damages.
• The case was filed pro se by someone who cannot legally represent the estate.

6. Estrangement and Emotional Distance

Wrongful death damages often include non-economic losses such as loss of companionship, guidance, and affection. In Illinois, the law presumes a parent and child, or spouse, suffer such losses—but the presumption can be rebutted.

Defense attorneys may introduce evidence of estrangement—such as lack of communication, abandonment, or broken relationships—to argue that the survivor is not entitled to significant damages.

7. Discrediting Expert Witnesses

Expert testimony is key in wrongful death cases, particularly for proving causation, estimating lost income, and assessing medical factors. Defense lawyers may try to exclude plaintiff experts under Illinois Supreme Court Rule 213(f) if the expert’s opinions were not fully disclosed before trial.

They may also attempt to:

• Disqualify experts for lack of credentials.
• Impeach the expert on cross-examination.
• Argue the expert is a “hired gun” whose opinions are biased.

These tactics can be effective if the plaintiff’s case rests heavily on expert opinions not well-supported by evidence or documentation.

8. Statute of Limitations Defenses

Defense attorneys often scrutinize the filing date of a wrongful death lawsuit. In Illinois, wrongful death claims generally must be filed within two years of the date of death, unless an exception applies.

If the claim is even a day late, defense counsel will move to dismiss—and courts will often grant that motion regardless of the circumstances.

Unfortunately, late filings are a common pitfall when families are still processing grief and unsure whether they want to pursue legal action.

9. Limiting Evidence with Motions in Limine

Before trial, defense lawyers file motions in limine to keep certain evidence out of court. These may include:

• Excluding graphic photographs or videos.
• Preventing emotional testimony from family members.
• Barring references to unrelated bad conduct by the defendant.

By limiting what the jury can hear or see, defense attorneys can shape the narrative and reduce the emotional impact of the plaintiff’s case.

10. Manipulating Closing Arguments

Even after all the evidence has been presented, defense attorneys may try to sway the jury with emotionally charged or misleading closing arguments. Common tactics include:

• Suggesting the plaintiff is motivated by money.
• Emphasizing how damages will “punish” the defendant unfairly.
• Highlighting the decedent’s mistakes or flaws.

Courts may admonish counsel for improper arguments, but such tactics can still influence jurors—especially in emotionally complex cases.

Don’t Let a Defense Attorney Undermine Your Family’s Claim

At John J. Malm & Associates, we know how defense attorneys think—because we’ve seen their tactics in court again and again. Our top-rated Illinois wrongful death attorneys anticipate these strategies and prepare comprehensive legal responses for every case we handle.

Whether it’s locating independent witnesses to defeat a Dead-Man’s Act challenge, securing top-tier experts to prove causation, or gathering evidence of a close family bond, our firm builds strong, fact-based wrongful death claims that stand up to aggressive defense tactics.

Contact the Award-Winning Illinois Wrongful Death Lawyers at John J. Malm & Associates

Wrongful death claims in Illinois are complex, emotional, and often hotly contested. Defense attorneys will look for any opportunity to weaken your case, discredit your family, and avoid liability. You deserve an experienced, compassionate legal team that knows how to fight back.

At John J. Malm & Associates, we’ve helped families across Illinois recover meaningful compensation and hold negligent parties accountable. If you’ve lost a loved one due to someone else’s carelessness, don’t wait to protect your rights.

Call us today at (630) 527-4177 or visit www.malmlegal.com for a free consultation. Let us stand by your side—and help you pursue justice.