Defending Accountants In Elder Care/Elder Abuse Litigation (Part 4)
by Arthur V. Pearson

<<Part 3

Problems for the Claimant

CLIENTS

Conflict: The claimant group (the interested parties) usually includes the elder, the elder's issue, or other heirs. Often they have quite different goals and timing problems. Older claimants generally are more concerned with their own potential demise while the litigation goes on than are younger heir-claimants who may still feel immortal. The group may also have different views of whether a wrong was committed, whether the attorney's fees to pursue the litigation is money well spent, and what should be the goal of litigation. This problem may result in multiple counsel and multiple expense. All of these factors may compel the claimant group to seek an early resolution.

Claimants have the same problem as does the defense in dealing with incompetent witnesses. The difference is that the claimant carries the burden of proof, and if seeking certain remedies, the burden may be the very substantial "clear and convincing" evidence. Thus, where the only source of evidence necessary to establish the critical elements of the case is an incompetent or question-ably competent witness, the claimant has a problem case. This is an advantage the defense can exploit, possibly with a summary judgment motion.

HIGH BURDEN OF PROOF

Where certain remedies are sought, such as punitive damages, a multiplier of compensatory damages, attorney's fees, or survival of emotional distress damages following death of the elder, most statutory schemes require the plaintiff to prove by clear and convincing evidence all of the elements necessary to prevail. This can be a difficult burden and in close cases sometimes an impossible burden of proof.

COVERAGE

This is a two-edged sword for most plaintiffs. While it hands them a very powerful weapon with which to coerce settlement, it also creates a problem for them getting paid. If the insured has little or no ability to pay a large award and the matter goes to trial, a large but uninsured award may be a Pyrrhic victory. This can be used as a settlement weapon for the defense as well. Thus, how a plaintiff drafts the complaint and how they amend the complaint during the pendancy of the matter may have a significant effect on how the matter is defended, settled, or tried.

Next page: Defense Strategies and Conclusion >>