A Guardianship Jury Trial Case Study
I. Introduction
Looking back, my two guardianship jury trials this summer were for me an important pioneering effort. I was testing what personally was a previously untried tool for advocating on behalf of elderly clients everywhere. Success would be great, and even failure would at least be useful as a learning experience.
II. Case Chronology of Second Jury Trial
This jury trial concluded on July 20 with a unanimous verdict awarding full guardianship both of the estate and person against my client. Was this therefore a failure? I think not. Much was learned from the experience.
The sole issue was competence. My opponent was the Cook County Public Guardian's Office. They have several staff attorneys who have been regular attendees at NAELA programs, and they have a history of vigorous and enlightened advocacy on behalf of seniors in adult disabled (as well as juvenile) cases. Patrick T. Murphy, the Cook County Public Guardian, was very ably represented by two staff attorneys during the three days of the trial, as well as during the statuses, discovery, motion practice, and other preliminaries leading up to the trial itself.
This case, from the beginning, had promised to be both hard fought and a bit entertaining. My entry into the case was as the court-appointed Guardian Ad Litem. This process, at least in Chicago, involves being on a revolving list of volunteer attorneys whom the trial judge chooses when an adult guardianship petition is brought.
My role initially in such a case is to advise the Alleged Disabled Person (ADP) of her rights, and act as the eyes and ears of the court in making a written report. During one of the conferences before the trial began, the court entered an order changing my role to Attorney for the Alleged Disabled Person.
My first visit to the ADP was unremarkable. I went to her house, no one appeared to be at home, and I left the statement of rights in her mailbox, and a note asking that she call me. Within a day of that, she called me, and we had a detailed discussion about the Public Guardian's petition. She and a friend came to the first court hearing on April 30, 2000. At that time, I appeared in my capacity as Guardian Ad Litem, and presented my written report to the Court. Basically, the report stated that the ADP was objecting to guardianship in general, as well as to the Public Guardian being her guardian. She agreed, on my advice, to accept counter service at the Sheriff's Office at the courthouse, this way avoiding her having to be served with the summons at her house.
On May 2, with the ADP's consent, I appeared a second time and presented on her behalf an appearance and jury demand, jury demand, motion to advance matter to trial, and response to petition to appoint a guardian. In Illinois, a person must be over 70 years of age and show good cause in order for the court to advance the trial date to an earlier date. Here, the court indeed granted our motion, and shortened the amount of time the Public Guardian had in which to do its discovery and pretrial motions. A status date was set up for May 11 for scheduling a trial date, and discovery was cut off at 60 days. On May 11, I returned, and the Court scheduled the trial for all day on July 18, 19, and 20.
On June 28, I and opposing counsel appeared at a jury instructions conference. Because some of the instructions were not worked out to the Court's satisfaction, there was a second jury trial conference on July 11. This too resulted in some unfinished business, so we returned a third time on July 13. At that time, our jury instructions (principally written by myself) and the voire dire questions (principally written by opposing counsel) were approved by the Court.
III. Jury Instructions
Attorneys who haven't done a jury trial lately, or at all, frequently ask about what instructions were used, and occasionally want a copy. I provided the Guardianship SIG with a copy of the marked up instructions, so these are available on request. The reader should know that the set in the forms library contains references to the Illinois Pattern Jury Instruction section number it comes from and to case or statutory authority. These references did not appear on the so-called "clean set" that was actually read and then given to the jurors to use when they deliberated at the close of all of the evidence and arguments.
The pattern instructions are very important, but at the same time are self-explanatory. For your information, the preface to the Illinois Pattern Jury Instructions states that the exact wording of these instructions should be used wherever appropriate, and modifying language should be used wherever doing so is appropriate. Where no standard instructions are available, then a "non-IPI" instruction is to be given to the jurors. There was an instruction that defined "clear and convincing evidence". This is interesting because the commentators to the Illinois Pattern Jury Instructions had recommended not giving the jurors an actual definition. This is because the commentators felt that more confusion than clarity would result from actually giving such an instruction. At the first conference, the Public Guardian had argued unsuccessfully that the evidentiary standard should be preponderance of the evidence. We countered that although there were no case holdings in Illinois on this, that there was dicta in two cases talking in terms of clear and convincing evidence. Also we argued that these proceedings involved radical deprivation of rights and liberties, and the same evidentiary standard used in civil commitment and criminal cases should also apply in adult guardianship adjudications. The Court agreed with us on this point. Both sides argued at the close of all of the evidence whether a limited guardianship instruction should even go to the jurors. We had four instructions that for sure would be given (fully able as to making and communicating personal decisions, fully able as to making and communicating estate decisions, fully unable as to making and communicating personal decisions, and fully unable as to making and communicating estate decisions), and two "held back" instructions, i.e., only partially unable as to making and communicating personal decisions, and only partially unable as to making and communicating estate decisions. Over the Public Guardian's objections, the latter two limited guardianship instructions were allowed to go to the jurors, along with the four that were going to be given no matter what.
IV. Voire Dire
This process was interesting inasmuch as the Court sought to keep a rather tight rein on the number of questions counsel could ask. Case law says it is an abuse of discretion to refuse to allow any questions from counsel at all; however, there is considerable leeway for the court to restrict the number or nature of those questions. The questions were to be written out ahead of time, as agreed to by both sides, and the Court would ask these questions of each prospective juror. Each attorney was to ask only two additional questions apiece of each juror.
Each side had three "peremptory" challenges (namely, no reason needs to be given for the challenge), and an unlimited number of challenges for cause. Since the Court was very knowledgeable about what constitutes a challenge for cause, opposing counsel was unsuccessful in getting any of their challenges for causes allowed. Basically, the for cause challenges include, among other things, a fixed and abiding bias or prejudice that cannot be set aside by the juror, as well as the statutory checklist items. The statutory items in Illinois include being under 18 years of age, being infirm or decrepit, failure to be free from all legal exceptions, failure to be of fair character, failure to be of approved integrity, failure to have sound judgment, failure to be well informed, inability to understand the English language, not being one of the regular panel, having served as a juror on the trial of a cause in any court in the county within one year previous to the time of the person being offered as a juror, being a party to a suit pending for trial in that court, having sought within the past 60 days the position of a juror, or the fact that any attorney or party has sought the placing of such juror upon a jury within the past 60 days.
The Court introduced herself and the deputy (as well as counsel) to the jurors and then began by saying to them that the case involves a petition to adjudicate disability and that the petitioner is asking that the ADP be adjudicated a disabled person. The ADP disagrees. Then the for-cause questions began. These were asked by the court. One prospective juror was excluded due to a case he had pending in which he was a party. Another person was excluded due to having had a license suspension violation. On the other hand, a person with a pending bankruptcy case was kept on the prospective panel.
For the sake of keeping track, the jurors were questioned in clusters of four. The juror numbers were as follows: 12 10 8 6 4 2 11 9 7 5 3 1
The Public Guardian's counsel used all three of their peremptory challenges. One was a woman who said that persons facing guardianship should not have their rights taken away. She reluctantly said she could be fair to both sides. Another prospective juror was struck whose son has Turret syndrome, who said that if a person can care for himself, then the court should not interfere, that he had sued the Illinois Tollway in 1988 and felt that he gotten a raw deal, that his parents had been in a nursing home and there had been some abuse there, and that his great niece had been through a court guardianship. He stated in spite of all of this he still could be fair and impartial. The third person challenged off by the Public Guardian was a special education teacher in the public schools who voiced a strong opinion that everybody has a right to make his own decisions whenever possible, including health decisions. My sole peremptory challenge was against a person who is self-employed as a computer consultant and had asked to be discharged due to her being a sole proprietor in her business and not being able to afford time away. Also, she had been a witness in an age discrimination lawsuit where an older employee had pointed her out as being a younger employee whom the employer had kept and at the same time had discriminated against the Plaintiff as an older employee. The court pointedly asked me if the challenge was because the person had asked to be excused, and I responded in the affirmative.
V. Side Bars
Lots of time was spent outside of the jurors' presence discussion questions of evidence, procedure, and points of law. One especially interesting point was when one of the other side's occurrence witnesses started to testify about something I had allegedly said to her while interviewing her as a prospective witness for the other side. I told the court (outside the jurors' presence) that this thrust me into the position of having to testify in rebuttal and this might disqualify me as counsel for the ADP. Also, I pointed out that this amounted to unfair surprise. The Court sided with me on this, over my opponent's objection, and that aspect of the witness' testimony was never heard by the jurors.
Generally, the Court would conduct a side bar anytime either side requested one. The Court in this case was extremely strong and practical in making decisions on the various points as they arose, and contributed greatly toward the speedy and fluid handling of the trial during all three days.
VI. Jury Deliberation and Verdict
The jury deliberated less than half an hour. In hindsight, this should not have been that surprising, since it was after 5:00 p.m. on the last day of the trial before they even were sent in to begin deliberating. I am sure the lateness of the hour contributed to the quick decision. It is doubtful that a quick decision is good news for an ADP for whom I was arguing strenuously for 3 days that she did not need a guardian at all, but if she did, it should only be a limited guardian. Limited guardianship is a tough sell in an elderly guardianship case anyway, and I suspect that a longer deliberation process would have been helpful for the jurors to arrive at a limited guardianship verdict as to person, estate, or both.
VII. Calling The ADP as a Witness
This proved to be the critical part of the trial. The ADP rallied and testified well during my direct questioning, and she appeared to do even better during the Public Guardian's cross. Unfortunately, her refusal to comply with discovery (written interrogatories, written request for production for documents, and documents requested at her oral deposition) resulted in a heated side bar when we finally produced bank records at the start of the third day of trial. The Court ruled against the Public Guardian's motion to sanction us for discovery violations, but we were barred from using any of the information because we could not get these items admitted under the business records exception to the hearsay rule. This was because we did not have the custodian of the records available to testify in court to get them properly admitted into evidence.
Our quest for at least limited guardianship was significantly damaged by the ADP's refusal to produce this discovery until the very last minute. As a result, we were unable to get her bank records properly admitted into evidence. The ADP virtually erupted and kept saying loudly enough for everyone in the courtroom to hear her that I should have used her records to prove her competence. Even worse, after she had finished testifying, and while two of the Public Guardian's rebuttal witnesses were testifying, she actually stood up and went over to opposing counsel's table and flung her IRA passbook onto the table and demanded that opposing counsel look at it. When I polled the alternate juror after the trial was over, he said that was what did her in as far as he was concerned. Something tells me that the six regular jurors probably felt the same way.
VIII. Use Of Humor
Throughout the trial, I borrowed from an analogy used by Ed Boyer at an earlier NAELA conference. Whenever I couldn't remember my question and a witness wanted me to repeat it, I said my ""lava lamp" was burning a little low. This, as you may recall, relates to Ed's having likened competence in many of our clients to a lava lamp whose fluids and colors ebb and flow within the lamp that contains them. At several points, some of the jurors broke out laughing as I continued to do this. During the trial, the bailiff several times referred to me as "Mr. Lava Lamp".
IX. Conclusion
This jury trial (and the one before it) were difficult in many ways for all concerned. Nevertheless, the process did not take significantly longer time than would a bench trial have taken, and the petitioner certainly had to follow the rules of evidence and procedure very closely to get their jury verdict awarding guardianship. The critics of ever using a jury in an adult guardianship case can continue to be critical if they wish. Nevertheless, it is clear that the system worked during those three days (and during the previous jury trial as well), and there will now be a clearer path for others to follow in future guardianship jury cases.
Speaking for myself, I now have a chancery division case coming up soon in which I represent an elderly woman suing her son for taking over her life's savings and proceeding to self-deal and make horrible investments with that money. Punitive (or exemplary) damages are being sought, and a 12-person jury demand has been made. Hopefully, the experience gained from the two previous cases will make my handling of this and other future jury cases more skilled and effective.
To the extent that the jury trial is a fundamental and important part of our legal system, and needs to be considered and pursued in at least some guardianship cases, these two cases were a victory for all elder law attorneys. In short, I am not bothered by the outcome. Rather, I am proud of having been able to be part of the process.