The justice system should treat people of all ages equally, though there are steps lawyers can take to ensure Golden Years clients are well represented.
The first thing to realize is that there is no firm definition of who is a senior. Many government programs set that number at 65, but at Gluckstein Lawyers I have peers who are in their mid-eighties. They draw from decades of experience that the rest of us can learn from.
In terms of case law, there is not much discussion about what is referred to as the Golden Years Doctrine, especially in Ontario. When I am working on mediation and pretrial memos for clients in their Golden Years, I often include an excerpt from a B.C. Supreme Court decision.
It notes: “The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.”
Many clients 65 and older tell me they feel they are being treated differently, strictly because of their age. That is regrettable, as ageism in any form is wrong.
I proudly represent clients in their 70’s, 80’s and 90’s. We can all learn from their invaluable life experiences.
I truly enjoy listening to their life stories. They are not only informative and inspiring, but they help build a strong case. It is essential to not only understand a client’s injuries and impairments, but to be able to tell the story of who and what they were at their core prior to the terrible incident giving rise to their case.
Technology Is Not Always an Issue.
Age is not necessarily related to the ability to adapt to modern technology. Many of my clients over 65 are active on social media (sometimes too active, and often without adequate safety measures). They are also comfortable with Zoom or other forms of virtual communication, as there is a very good chance that they have had online medical appointments during the pandemic.
Lawyers representing older clients need to ascertain how familiar they are with technology. Do they have a cellphone and can they text? Can they sign documents electronically or do they need to meet in person for that?
When the examination for discovery is held, will they be comfortable participating remotely from their home? Lawyers must determine these factors well in advance of discovery or mediation. If they just assume the client knows Zoom as well as we do, it will frustrate all parties involved if it takes an hour at discoveries to get the technology working.
I have a humorous story to illustrate how a home Zoom discovery can go wrong.
My client was 93 years young at his discovery and I told him many times that he had to be alone during the session. I was in my office and my client was at home, in his kitchen, with his wife in an adjoining room with no doors separating them. He assured me his wife would not be able to hear the call and would not be taking part.
During the discovery, my client was asked how the weather was the morning of his accident. “It was sunny and beautiful,” he said. Then, a distant female voice is heard by everyone on the zoom, shouting from another room, “it was overcast.”
To avoid this situation, decide ahead of time whether an online meeting will be appropriate. Several of my clients – of all ages – come into my office for discovery. Everyone else is on Zoom but they are sitting across with me in the boardroom and I am in charge of all the technology. This can take some stress away from the client and allow them to relax and only focus on questions and answers. This has to be balanced with the stress of getting to and from the office, of course.
I have also joined my clients in their own homes for discoveries. Make these decisions early on in the process to avoid last-minute confusion and stress for the client and yourself. Sorting these issues out when the discovery or mediation is booked will make life much easier for everyone.
Don’t Wait.
The civil justice system is slow. Covid made it even slower. When representing clients in their Golden Years, always think one step ahead so that the matter can move along as quickly as possible. Timing of the issuance of the Statement of Claim, setting up discoveries and mediations (if required) and setting the matter down for Trial should be top of mind at all times to ensure these cases can get to their finish lines in as timely a manner as possible.
Get to Know Your Client Ahead of Time.
Another crucial step at the beginning of the file is to compile information about the client and their family. Depending on the severity of the case, you will want to know if there are potential Family Law Act claimants. Is there a spouse? Siblings? Are there children, grandchildren or great-grandchildren?
Look at the client’s family medical history/situation. The client mentioned above was 92 when he was hit by a car. When he told me that of his two older siblings, one lived to 99 while the other was still alive and active at 99, his 92 felt especially young.
Ask clients if they have wills and/or powers of attorney. Refer these clients to Estates lawyers for advice if necessary.
Obtain more than one emergency contact. Gather the names of sisters, brothers, children and grandchildren over 18. If for some reason you are unable to reach your client, you will know who to contact.
In many personal injury cases we are dealing with the issue of causation and what abilities and functions our clients have lost due to their injuries. That is especially important with senior clients, as mediators and opposing counsel might unfairly assume that their inability to fully enjoy life is due to their age.
I always ask for photos or videos of clients taken in the few years prior to the incident giving rise to their case. They may have been doing exercises classes or cycling - activities proving they were vibrant and active before the injury.
I had a client who was 82. Post-accident, she walked with slowly with a walker and looked quite disabled. At her discovery, she mentioned that she had been taking part in a physically demanding form of dancing at her community centre before her accident.
In the hallway during a break, I asked her son if he had any photos or videos showing his mother dancing before the accident. He immediately sent me videos that were taken just weeks before the accident. Her dancing was incredible. She looked like a completely different person that the one who presented at discovery.
When I sent the videos to defence counsel, his response was, “oh my, I would not want the jury to see these!” Needless to say, the case eventually resolved before Trial.
Dealing with Ageism.
If a lawyer senses a hint of ageism, either intentionally or inadvertently from the other side, there are ways to handle this.
Let’s say opposing counsel has made some ageist remarks about one of your older clients. I would suggest checking their firm’s website and finding a lawyer who works as a part of their team who may be a similar age to your client.
“Perhaps you run this case by your colleague, and let them know that you think my client is likely near the end of their working life and career at 66,” I may suggest sarcastically.
I once had a Pre-Trial with a client in her mid-sixties who was looking after her 90-year-old mother (her mother was living with her in her home). Part of the damages she was claiming was in relation to her inability to care for her mother and some of the costs associated with same.
When the defence lawyer suggested that my client’s mother could easily be living “in a home”, the Judge was offended. This Judge had strong opinions about the right of seniors and their families to decide how and where they want to live during their 80’s and 90’s (and beyond).
One of the things that I like to do during downtime in meetings, and especially discovery preparation, is to ask my clients about their past. On one occasion during an in-person mediation, where we have lots of private time with our clients, I asked a Golden Years couple, “who was your favourite musician from the 1950s?” They gave me the name of a Jazz band and I found it online and started playing it on my computer for them. They got up and did a little dance together. It was a heartwarming moment I will never forget. It also took some of the edge off the legal process.
Put on a Life Hat.
My advice to other lawyers is to embrace the wisdom of Golden Years clients. Perhaps some of us will make new Ontario law in cases where it seems that the defence are trying to minimize the damages based on age.
Keep in mind that what may be a small loss of function to a younger person may be an even larger loss to an older person whose activities are already constrained by age-related health conditions.
We need to put ourselves in our clients’ shoes and be patient in getting to know them. It is helpful to sit back and listen.
Take off your lawyer hat for a few minutes and put on a life hat. Everyone will benefit from such an exercise. The time we put in early in the process, to truly get to know and understand our clients, will undoubtably help us fiercely and proudly represent them, and believe in our theory of the case.
Contact Us for Assistance.
No matter your age, you deserve proper legal representation if you have suffered a personal injury due to the actions of others. Our trusted team of experienced personal injury lawyers and support staff will work diligently to get you the financial help you need to get your life back on track.
The initial free consultation is without obligation on your part. We will never charge legal fees until your claim is settled. Contact us today.
Watch Jonathan Burton’s webinar here to learn more about representing Golden Years clients.