30 Trial Lawyer • Winter 2023 Fall Continued from p 29 mats. This information was significant for us because Vivian fell in the late afternoon, more than eight hours after the pre-opening inspection and during a Labor Day sale event. Know your client’s story I am a firm believer that we must find something to love in our clients in order to move a jury to act on their behalf. Luckily for us, Vivian made that easy. Born on a small farm in South Dakota, she walked or rode a horse miles to school with her 5 siblings. After becoming an elementary school teacher, she married into the U.S. Air Force and followed her husband to duty postings all over the country and the world, raising five healthy and successful children of her own. After the death of her husband and overcoming breast cancer late in life, she made a decision to become active in her community. To say she is a tough woman would be an understatement. At age 92, she was visiting Portland from her home in Texas for the annual convention of a charitable organization of which she was a member and past officer. On the day of her injury, she was visiting the mall to buy a new garment bag for her convention outfit. To maximize an elder client’s recovery, it is critical to understand exactly how a client’s life was altered as a result of the injury. At the risk of stating the obvious, what may be a small loss of function in a younger person may present a much larger loss to an older person whose activities are already constrained by age. For Vivian, the biggest loss was her loss of confidence and the injection of fear into her life. Before the injury, Vivian was largely independent, travelling regularly on her own to visit family and friends out of state, and for social functions in her home town. Independence and mobility were core values for her. After the injury, Vivian was forced to walk with a cane. She limited her activities because she was so afraid of reinjuring herself. She could not contemplate experiencing the physical pain of a similar injury, or a repeat of the loneliness she suffered during her rehabilitation in the skilled nursing facility. As a result of her injury, her world was smaller. In other words, her ability to participate in and derive pleasure from the normal activities of her daily life was severely impacted. This was not a story that came easy from a client as inherently stoic as Vivian. This information was only shared after trust and rapport were established, and with the discrete use of psychodramatic techniques. We must spend time with our clients in order to fully understand the impact of an injury. For those of us with busy practices, this can be difficult. But it is essential. Preserve your client’s claim For any client with fragile health, be aggressive in seeking trial preference. Oppose all continuance requests. Be diligent so you are not in the position of needing a continuance. Perpetuate testimony if you have any reason to believe a client will not be able to testify at trial. Even if the perpetuated testimony is never used, it is a good practice opportunity and gives you a chance to tune up any weaknesses. Vivian was 94 at the time of filing, and 95 at the time of trial. Even though she reported good health, we perpetuated her testimony in an abundance of caution. Vivian appreciated these efforts, and we hoped to convey to the insurance company that we intended to pursue the claim to the bitter end. Ultimately the case resolved in a very favorable settlement on the eve of trial. Conclusion Careful case selection is the key to success for any plaintiff’s attorney. This is especially true when considering an elder fall injury. But the mere fact of advanced age should not discourage you. The promise of our system is equal justice for all. It is up to us to make that promise a reality. Cameron Carter dedicates his law practice to personal injury litigation at the Law Offices of Cameron Carter. He contributes to the OTLA Guardians of Civil Justice at the Sustaining Member Level. His firm is l o c a t e d a t 7506 SE 51 s t Av e . , Portland, OR 97206. You can reach him at cameron@carterlawpc.com or 503-3955297. Photos taken at the scene showed the floor mat was riffled onto an adjoining floor mat because of the relation of the floor mat to the 90 degree angles of the underlying floor tiles. Something was askew.
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