OTLA Trial Lawyer Summer 2021

22 Trial Lawyer • Summer 2021 By Jason Skelton OTLA Guardian M y client, Betty Lou, is a tenant in an apartment building for adults ages 62 and older. This case is different from my prior premises liability cases because my client’s injuries were not from the fall itself but from being left on her bathroom floor for over 24 hours until an ambulance arrived. Her landlord had installed a new safety alert system but failed to connect it. When Betty Lou pushed the large button marked “Alert” in her bathroom, nothing happened. She was left on the floor, unable to get herself up, unable to crawl out of the room, and no one could hear her pleas for help even though she could hear people in the hallway. Because she is over the age of 65, I filed a claim under Oregon’s Elder Abuse Jason Skelton Act in addition to the typical tort and Oregon Residential LandlordTenant Act (ORLTA) claims. I am happy to know her. And my experience with her has contributed to my lessons about repre- senting those in their golden years. The senior client Our first meetings ran longer than usual. Betty Lou likes to chat. In my view, the longer visits help build the relation- ship. There is risk, however, of blurring the line between professional relationship and friendship. For example, one of my other senior clients texted my paralegal multiple times a day and into the late evening, and requested we purchase household items and deliver them to her. We had to declare we were her lawyers, not her personal assistant. All of my senior clients live alone and tend to be isolated. They generally do not get to see their families much. The isolation was, of course, accentuated with COVID. They know we will always re- turn their calls or texts. Next, because client communication is such an important part of the attorney- client relationship, I recommend at the outset finding other people in your seni- ior client’s life, such as a spouse, friends or family, who you can reach out to when communication breaks down. And it will likely break down or there will be times when you are not sure whether the mes- sage you are sending is being received. This happened with Betty Lou when she topped returning my text messages and phone calls about obtaining medical records and a deposition date. Fortu- nately, I have a relationship with two of her close friends (there is also a son in California who I can use as a backup). Her friends shared their recent expe- riences with Betty Lou. She was having some difficult times, feeling lonely and vulnerable. The friends called her. She did not return their calls but she did return mine. We had a long talk about her poor experiences with lawyers, the potential outcomes of the case and some other stressors in her life. I also found out she was having trouble receiving mail at her apartment building. It was a tense but useful conversation. Competency Awareness of your client’s legal com- petence is also important. As people move into their 70s, they may experience some memory loss. You may come away from a meeting wondering at what point memory loss becomes early stages of dementia. Fortunately, forgetfulness has not been an issue with Betty Lou. But it has been something I have spent time on in other cases. Change in mental capacity is not always obvious. You may get con- flicting reports from friends, siblings or children. Maybe you need to acquire power of attorney or have a family mem- Seniors and Falls