Representing older adults in court can be a rewarding and challenging experience. Those who advocate for the elderly outside of court often face similar issues. Whether the issue is trial testimony, lobbying for laws protecting seniors or fighting an involuntary discharge from a facility – presenting a persuasive case is critical. Understanding the unique strengths and weaknesses of elderly witnesses will help you to get a great result for them.
1. Listen to them – at length
In any type of case, one of the most valuable things an advocate can do is spend time listening to the witness. Even when you think that you know all about the situation, you may be surprised how much you learn if you just stop talking and listen to them. This is particularly true with seniors. Especially if some early dementia is present – they can give you a great deal of information – but they won’t necessarily be able to tell it in logical, sequential order. Rushing the process is likely to make them anxious and hinder, rather than help them to provide information. You can always go back and ask more specific questions later. Early on, however, it can be valuable to let them talk without interruption. Your goal is twofold: One – to obtain information that may help you to advocate for them; and Two – to assess their ability to express themselves.
2. Then make the message concise
The role of an advocate is not just to talk – it is to persuade. Formulating the message that is most likely to persuade is really the essence of what advocates do. For some elderly clients, what they really need is our help in distilling a large volume of information down to a clear and concise message. Once it is focused, we can assist them in conveying the message.
3. Understand common difficulties of elderly witnesses
There are some difficulties that are common among elderly witnesses. If you work with seniors, you should be aware of these difficulties and know how to address them.
According to the Nation Institutes of Health, almost 1/3 of people between the age of 65 and 75 suffer from some hearing loss. After 75, that number goes up to almost half. Hearing loss can be devastating to the ability of the client to testify well. It becomes a particular problem if the senior is embarrassed or attempting to hide their difficulty.
You can do several things to help:
• Understand the extent of the problem so you can address it
• Assist the client in obtaining a hearing aid in advance
• Eliminate background noise during their testimony
• Speak loudly, slowly and directly
• If the client has difficulty hearing your voice (i.e. because you speak in a lower or
higher register that is difficult for them to hear) consider having somebody else
question this witness
Short term memory issues
Memory issues are also common and can make testimony difficult. In many cases, however, this is a problem that can be overcome with good planning. In some contexts, the senior can prepare notes about key points. Sometimes the questioner can prompt the witness with various cues – i.e. “Is this a copy of your bill from the hospital?” In other cases, the advocate can work to present the information in another way.
Difficulty getting to and from court can be the easiest problem to solve. It is, however, important to address these problems. If your witness uses all of her energy getting to court, she isn’t going to have much left to focus and testify well when she gets there. If she is using a walker, for example, arrange for somebody to pick her up and drop
her off right in front of the building. Consider utilizing a wheelchair to get her to the courtroom and then continue using a walker thereafter. Preserving their energy can be extremely important.
These difficulties are probably the toughest to cope with. According to the Alzheimer’s Association, 13% of people over the age of 65 have Alzheimer’s Disease (the most common form of dementia) and 45% of people over the age of 85. Obviously, if a witness has severe cognitive issues, you simply cannot have them testify. On the other hand, many people who have some element of cognitive impairment can be excellent witnesses. Contrary to popular belief, a trial judge has discretion to allow testimony even of a witness who has been previously determined to be disabled by a guardianship court. Whether you ask them to testify or not depends on the context. In some cases, such as a guardianship hearing, if the client comes across as confused and forgetful, it may badly damage the case. In a case about an injury, the occasional moment of confusion may not hurt the case at all. In fact, an opponent who tried to capitalize on that would look mean.
4. Limit the workload on the witness
Almost all people find testifying to be exhausting and stressful. For seniors, exhaustion can be the root of many difficulties in testifying. As an advocate, you should strive to lessen their workload by limiting the things that they need to testify about. For example, in a neglect case, a friend may be able to talk about the senior’s recovery from injuries – and often do a better job of it. A family member may be able to testify about background information and family history. Save the senior for the things that only they can say, or that are most persuasively presented by them.
5. Prepare them for the environment
All witnesses get nervous about testifying. Having the opportunity to see the environment and understand the process in advance can be a big help. Arrive early with your client and allow them to adjust to the setting before it will be necessary for them to talk.
6. Review their testimony
As with most witnesses, it pays to review the testimony in advance. Take the time to explain what will happen in court, and the order in which it will happen. Do a practice “dry run.” If at all possible, do the preparation the day before they will testify –and then a very brief review on the day. There is nothing worse than having the client tire during the practice session and then perform poorly during the actual hearing. Likewise, preparing too early can be a mistake.
7. Utilize their strengths
After discussing the many possible difficulties that the elderly may have as witnesses – one might conclude that it is better to avoid having them testify at all. In rare circumstances this may be true. But this overlooks the power of their testimony. As a society, we actually do respect our elders. When a man who has lived for 80 years, raised a family and fought in a war, takes the witness stand to say something – we are ready to give him the benefit of the doubt. That benefit can be lost if he testifies poorly, but if he is well prepared, and testifies well – it is likely to be a decisive. It is important for any advocate to understand how powerful that can be.
Advocating for the elderly is a responsibility and a privilege. But advocating for seniors does not necessarily mean talking for them. Seniors can be their own best advocates. With our guidance, we can enable seniors to participate in presenting a truly powerful case.
Thank you to Bridget Murtha for editing this post and thank you to J D Mack for the photo.