47 Trial Lawyer • Winter 2023 $5,000 less than what he owed on the trade and sold him six useless add-on products for just under $8,000 for a car worth $15,000. In short, the dealer tricked Sam into a deal that cost him an additional $13,000. The deal threatened to put him in financial ruin if he failed to make the $400 a month payments that he had no idea he was agreeing to. Sam was as embarrassed as he was angry. As the litigation progressed, Sam’s health rapidly began to deteriorate. Document requests were difficult because he did not have the energy to search for documents. Meetings became difficult because he did not have the energy to meet with us and focus for long periods of time. Communication became difficult when he was on bed rest for long periods of time in the hospital. Sam and I knew his health was not going to get better, and it was unclear how much longer Sam had left. That is why mediation was going to be difficult. We knew his case had significant value, but it was unclear if Sam would realize the full value if he had to wait through a trial and potential appeal. Evaluating loss of capacity These situations are not unique to consumer lawyers. However, they are unique in the respect that the same issues that make a person vulnerable to car dealers can make them difficult clients. Elderly clients are extraordinarily sympathetic and have unique legal remedies that can provide treble damages and mandatory attorney fees. However, elderly clients like Sam can be very difficult to represent. You constantly have to evaluate the client’s mental capacity by remaining in constant communication with the client and any caregivers or companions. I have found that asking the client to remember and recall previously relayed details will help determine if the client is losing his capacity. Explaining issues and communicating litigation decisions in a way that an elderly consumer understands can be extremely time consuming and difficult. Some elderly consumers have difficulty focusing on issues or feel mentally fatigued. Trying to find the best time to meet them where they feel the most awake and alert can be extremely beneficial. Having a spouse, partner or one of your legal staff in the room can also be beneficial to explain things in various ways to the elderly client and also ensure the client is understanding the issues and what decision needs to be made. What may usually be a quick phone call might need to be a formal meeting with the client. Elderly clients can have hearing issues. They may not feel comfortable with a smart phone or device. Any substantive meeting should be done in person if you have any concerns about an elderly client’s ability to comfortably communicate through technology. Lawyers representing elderly consumers need to obtain all documents that may be related to the case as soon as possible. Many elderly consumers are highly organized. However, they can also get overwhelmed or not have the ability to search for documents due to health issues. To make matters worse, some elderly consumers are unable to scan and email documents to you, so you may need to go to their residence to retrieve documents or send them self-addressed envelopes so they canmail the documents back to you. Mobility issues must always be in the front of your mind. It is best to choose a place where the client feels comfortable and is easily accessible. Elderly clients, such as Sam, may be too proud to ask for assistance. If that is the case, let the client choose where they would like to meet and respect their decision. Overcoming hurdles When we met for our mediation, we had overcome a great majority of those hurdles. Discovery was complete, and Sam had handled his deposition like a champ. All that remained was to get through the mediation and set trial dates. For most people, mediation is a stressful event. There are long periods of waiting and wondering whether the opposing party will take our last offer and what their counter-offer is going to look like. When the mediator does return, the counter-offer is never adequate, and you have to give the mediator more justification to take another offer back to the opposing party. But not this one. Sam kept us entertained all day, regaling us with stories from his youth and supplying us with various unsolicited anecdotes that had the room bursting with laughter every few minutes. Near the end of the mediation, we received the final offer from the dealer that would take care of Sam but was far lower than what we could expect at trial. I looked at Sam and he wanted to fight, so we started talking about trial dates. That’s when he told me. He had been pushing out his cancer surgery for our trial. My heart sank when I heard that. I knew if we were to schedule our case for trial, Sam would have to push out his surgery again. Sam had a great case with all of the best pieces neatly lined up in a row. Still, if we are looking out for the best interest of our elderly clients, it’s not always a big financial award that’s best for them. We got the case settled that day. Sam was happy because he got what he needed, but more importantly, he got his scheduled surgery before the COVID lockdown. Sam was an unforgettable person with an unforgettable case. These are the kinds of cases that make us consumer lawyers keep coming back for more. Young Walgenkim represents consumers in auto dealer fraud and various other consumer law issues. Walgenkim is a member of the OTLA Guardians of Civil Justice at the Friends level. He is a founding member at Hanson & Walgenkim LLC, 838 Commercial St. NE, Salem, OR 97301. He can be reached at 503-3831496 or young@isuecardealers.com.
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