24 Trial Lawyer • Winter 2023 The grey What do you think when you see grey hair and wrinkles? Wisdom or weakness? Howwe see and howwe frame our clients means everything to our cases. No matter how sick or frail, I’m looking for the wisdom — the opposite of weakness — to value my clients’ lives, accomplishments and personalities as highly as possible. This might require you to reckon with unconscious bias or past negative experiences if you see more weakness or less value in the wrinkles and grey hair. There are some ways of being that I think help me represent my elderly clients and their family better. Fortunately, my bias and experience has gifted me toward seeing seniors as strong, vital and valuable community members. I get an extra boost of this in the rare situations where my clients are alive, and I get to advise them directly. When I do, I start with this important baseline: humility. At an AAJ case framing webinar, Mark Mandell shared that he thinks humility is the most important quality in a trial lawyer. Representing elderly folks gives me an easy and natural opportunity to put this into practice. I remind myself about actions, not just words, that embody humility. Ask questions, listen to stories (even when you think they’re irrelevant), be patient, don’t interrupt, offer choices. Once I’m channeling humility, my next step is to try and talk less, and when I do talk, to talk more efficiently. Mandell also teaches this when he encourages us to talk less and listen more. When I do, I inevitably learn more about what direction I should take the case and how to meet my clients’ goals more effectively. After humility and talking less, I work on repetition. Whether it’s actual dementia or what some call “senior moments,” repetition is your friend. I’m never shy to recruit an “echo” as I call it, a helpful family or friend to sit with us, to echo me or to echo my client for repetition of whatever aspect of the case we’re working on. I also want my elderly clients to feel supported, empowered and to ask questions. Having someone else in the room can also reduce stress and increase comprehension of the complexity of the legal or factual issues. When dementia is mild, having an “echo” will also help you assess whether you should dig deeper to ensure that capacity is firmly in place during your legal representation. The gravy The special sauce I’m talking about is “nonmonetary compensation” for the wrong your elderly client suffered. I’m working with the idea that defendants can and do agree to change their course of action, their policies, procedures and training. Has anyone ever suggested you work for this kind of compensation, and you roll your eyes (actually or figuratively)? You may have rolled your eyes for one of these three reasons — One, because no court of law will ever impose such measures. Two, that isn’t what makes the ends meet in our practices. Or three, many defense attorneys reject such measures out right. Well, I’m here to tell you I’ve rolled my eyes, too, believing that to ask the defendants for things like policy changes or training and re-education would be a waste of time, or be met with a cold shoulder from the defense (and likely the mediator, too). But recently, two extraordinary experiences at mediation changed my mind. The gravy can be the essential ingredient to a satisfactory resolution. In the first, I had four adult children (two of them were appointed co-PRs) grieving the loss of their father. They were largely unable to digest the reality that the fate he suffered, due to chronic pulmonary disease, was not entirely the defendant’s fault. Like so many of my clients, they were as interested in righting the indignity their father suffered as they were in seeking monetary compensation. Much to Guilt, Grief, Grey & Gravy Continued from p 23
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