16 Trial Lawyer • Winter 2023 Preparation Continued from p 15 hard to keep this information out when I didn’t think that it would have been necessary to begin with because I mistakenly thought all jurors knew these were common and blameless symptoms of Alzheimer’s. I wasn’t alone in this mistaken assumption. The judge was somewhat inclined to keep the information in based upon his experience with his parents’ cognitive issues and out of characteristic behaviors later in life. He said it is natural for those with cognitive issues to have these issues and no one will hold it against the client. Frommy experience with the focus group, I had to remind him that while many folks did have experience observing loved ones with dementia, there were also many others who had not and the correct analysis for the court to engage in was balancing the probative value and relevancy of the evidence against its prejudicial nature. You can also explore difficult topics like these during discovery and depositions. Most CNAs, nurses and nursing facility administrators will readily admit that inappropriate sexual comments are known, common side effects of dementia, and they do not take it personally or become offended, because they are trained in this area. In their experience, most of the comments are infrequent, and because of the advanced age and frailty of the resident and the resident’s general disposition, the staff workers are never concerned for their safety. Gathering information Do your work on the front end with witness interviews and on the back end going through the records. When you accept the case, a lot of attorneys think the smoking gun will be found in the nursing home chart. While this can be the case, it is not a given, and will take tens of thousands of pages to review to find it, if it exists. Many times, though, with electronic charting, the
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