15 Trial Lawyer • Winter 2023 See Preparation 16 of the deceased, who had ongoing disagreements with her siblings and who lived several hundred miles away and, as such, could only visit her mother once or twice a month. While the defense counsel will not disparage the deceased, they will relish every opportunity to take cheap shots at the daughter, drag her name through the mud and interject their manufactured contempt for her. In the defense view, the daughter had the audacity to try and hold a corporate nursing home accountable for not regularly bathing and grooming her mother, allowing her to develop and suffer from horrific pressure ulcers and die a slow painful death from those ulcers. Making assumptions Keep in mind the jury may not understand basic concepts like why nursing homes exist or concepts of dementia, and you will have to explain these to the jury. Jurors’ experiences with nursing homes will be widely varied. Some will have had to place a loved one in a nursing home before and others will even have worked at one. Many other jurors, however, will have no experience with nursing homes. Jurors inexperienced with placing a loved one in a nursing home will never think that they themselves will ever live in one at any point because their chidren or siblings will take care of them. In every focus group and every jury pool I’ve ever encountered, there are jurors in their 20s, 30s, 40s and 50s who carry the strong opinions that families who put their loved ones in a nursing home lack compassion for their parents and are selfish. From lack of personal experience with a loved one in failing health and with serious medical issues, these jurors simply do not understand that those in advanced age with cognitive limitations and mobility issues, combined with other advanced medical conditions, require nearly 24hour care that no one or two people, untrained in medicine, could possibly facilitate. As trial lawyer Keith Mitnik has said, caring for those with multiple medical issues which require constant monitoring and intervention is something that requires professional care, “it’s simply not a Home Depot, do-it-yourself job.” This is something that carefully needs to be addressed with potential jurors in any nursing home case as most who have not lived through it simply do not understand. Be sure to discuss these topics with potential jurors in voir dire and be ready to educate them on this at opening and throughout your case. Also, don’t make assumptions about jurors’ understanding of common medical conditions like dementia or Parkinson’s that most of us believe all folks understand. I recently had a case with a resident in his late 80s who suffered from Alzheimer’s and for several months, after a change in his medication, had made inappropriate sexual comments to nursing staff. This stood in direct contrast to how he’d lived his life the previous 80 years. I assumed jurors understood the basics of Alzheimer’s and dementia and knew it was common for those afflicted by these conditions to utter uncharacteristic sexual comments that should not be blamed as intentional acts. I was dead wrong. At the focus group, two jurors were insistent that Alzheimer’s was like alcohol — it just loosens a person’s inhibitions — so once a pervert, always a pervert. These two jurors were convinced that because my client had made inappropriate sexual comments attributable to his Alzheimer’s, was nonetheless a “pervert” and a “creep,” and he had been a pervert and creep his whole life. Now he was just getting caught because the Alzheimer's was loosening his inhibitions. With no evidence whatsoever to support this position, they were convinced my client had likely intentionally groped hundreds of women from his 20s through his 80s, and now was only being caught because of the Alzheimer’s. As such, I eventually brought a motion in limine and fought
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