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Elder Law Trials – By Judge Or Jury?

Civil cases in elder law trials may be heard by juries or non-juries (i.e. judges). Which is better?

Almost always, a jury trial should be the first choice of attorneys for older clients. Although the number of jurors in a case varies from state to state, there are usually 12 jurors. A jury of ordinary citizens is more likely to be sympathetic to an elderly client than a single judge trying the case. Judges may have heard thousands of cases before, so it is more likely that judges will become tougher on individual conduct experienced by older plaintiffs.

On the other hand, a jury has never seen or heard of such atrocities before and may respond more compassionately than an experienced judge.

Putting decision-making power (ruling or judgment) in the hands of a single person is almost always a dangerous proposition. A judge may have many personal problems that affect his or her judgment. Their parents may have treated them badly while they were growing up, and those horrible experiences may alter their ability to judge facts fairly.

If there are twelve jurors, the law requires at least nine jurors to agree on whether the defendant is liable. If at least nine jurors cannot unanimously, the term “hanging jury” applies and the trial will be found invalid. If the older plaintiff wishes to continue his or her case, a new trial is required.

While these average citizens may initially grumble and grumble (and understandably) at the prospect of having to appear in court for jury duty, the majority of those who are actually chosen to serve on jurors and try the case appreciate the experience and insight they gain Very satisfied with the actual court operations of the judicial process.

It’s also in stark contrast to judges who have been there for 20 years and no longer see trials as a fresh experience and a learning process. An older judge may have one goal: to move cases off his/her bench and reduce the caseload.

In some cases, older plaintiffs may not be entitled to a jury trial. These are known as equity claims, where, for example, an elder is seeking to settle title to a piece of real property and wants a court to determine ownership. An older plaintiff may ask the court to impose a so-called constructive trust on the defendant and return legal title to the plaintiff. This is also a requirement of the law of equity, and the law generally does not provide for the right to a jury trial.

But in California, even cases involving conservatories offer the right to a jury trial. A jury can be used to determine whether an elderly person needs a receiver to manage his or her finances. Although infrequently used, a jury trial may be held to decide this single issue. If the jury decides that supervision is necessary, their job is over and they will be fired. The case then goes to a judge, who rules on the remaining regulatory issues.

When the right to a jury trial exists, it is wise to use the reason and common sense of a dozen ordinary citizens. Usually, at least nine out of twelve people will get it right.

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