Intern for Justice Kaplan, Summer 2017

By Alex Greenberg

Harvard College, Class of 2021

Intern for Justice Kaplan, Summer 2017

Implementation of Best Practices for Accommodating Elders in the NY Court System

Elder abuse takes an insidious toll on the lives of hundreds of thousands of senior citizens every year. Current awareness surrounding elder abuse is reminiscent of where our nation stood 25 years ago on issues of child abuse and domestic violence[1]: there is severe underreporting of incidents, a dearth of useful data on the prevalence of abuse, and an urgent need for increased education and outreach within the judicial system itself.

An estimated 260,000 older adults in New York State reported being abused in the years 2008-2009, according to a study conducted by the Weill Cornell Medical Center. Furthermore, it is expected that approximately 22% of the population of New York will be above the age of 60 by the year 2020.[2] Thus, in the coming years, our courts will be interacting with an unprecedented number of older adults and must be prepared to adapt to the needs of this demographic. It is, for that reason, imperative that our state courts expand their judicial literacy on elder abuse law, identify and implement effective intervention regiments, and learn best practices for accommodating elderly participants who have matters before the court.

According to the aforementioned study, and perhaps most indicative of our need to improve the system, is the staggering divide between the number of respondents above the age of sixty who self-reported being abused in 2010 (seventy-six per every one thousand subjects) and the number who actually received intervention (only about three per every one thousand subjects).[3] Efforts to improve existing conditions of the court to accommodate elders will boost confidence and encourage those who might otherwise feel excluded by the courts to report abuse and seek relief.

One way to encourage elder participation in the judicial process is to tailor a timeline that takes into account the unique barriers that older people face during a typical day in court. According to data from several counties in California, 41% of courts give elder cases priority on the calendar to avoid having seniors endure long waiting times on account of limitations that may make spending all day in court an impossibility.[4] Almost one-quarter of interviewed courts designate special calendar times for elder cases, such as holding hearings during times of day when elders have the greatest capacity.[5] An elderly person may have trouble making it to court for a calendar call in the early morning and staying late into the afternoon to testify: as an alternative, the court could schedule hearings involving elderly persons for the late morning to minimize fluctuations in memory and fatigue.[6] In doing this, courts are not only making the process more user-friendly for elders but ensuring that those with limited or affected capacity are as present and alert as possible in their dealings before the court.

Another streamlining approach that has been taken up by numerous California county courts is an expedition of the process for elders seeking temporary restraining orders. In the Superior Court of San Francisco, any person over the age of 65 requesting a domestic violence restraining order is referred to the family law self-help center where he/she can file and pick up a TRO within a 4-hour window.[7] For members of such a vulnerable population—with limited mobility and oftentimes, no clear way to flee the environment of the abuser, particularly if the abuser is a relative—a fast turnover rate to ensure immediate protection and security must be a top priority.

Elder courts—courts dedicated exclusively to matters relating to elder abuse—have been cropping up throughout the country. One such initiative, housed in the Superior Court of California (Contra Costa County) has demonstrated prompt and consistent resolution of elder abuse cases at minimal cost. Any case involving an elderly victim—whether it be a civil, criminal, probate, restraining order, or landlord/tenant matter—is heard by a single judge who oversees the entire judicial process from start from finish.[8] That way, cases that would typically take years to resolve are settled within a matter of months via a streamlined and holistic process.

Take the case of Alice: an 86-year-old widow whose troubled son abused her physically, repeatedly stole money from her to buy drugs, and added his name to the title of her home before bleeding her bank account dry. Under normal circumstances, the separate claims in this action would be heard in multiple different courts. Generally, the civil suit would be stayed until the felony case was resolved, which itself could take up to a year or longer. Alice, defenseless and suffering from Alzheimer’s disease, didn’t have that kind of time. Referred to Elder Court, Alice was awarded restitution within one-to-two months: her son pled guilty to the felony elder abuse charge, was ordered to pay her housing costs, and a judgment was reached in the civil matter.[9]

Beyond legal action, the Elder Court in Contra Costa partners with numerous social service organizations to assist elder litigants before, during, and after their court appearances. What was once a hodgepodge of government agencies and nonprofits offering spotty assistance to elders has, under the direction of Judge Joyce M. Cram, become a coordinated network of services equipped to address the myriad needs of elder litigants.[10] Volunteers from the Senior Peer Counselor Program meet with litigants before their hearings to review paperwork, explain the process, and provide follow-up support. A senior self-help center is open during Elder court hours to answer any questions pro-se litigants might have relating to small-claims, landlord/tenant, or conservatorship matters at essentially zero cost to the court (aside from a small room, a file cabinet, and a computer).[11] With pro bono help centers like Vols (which offers 12 monthly walk-in legal advice clinics for Manhattan seniors[12]) located in the New York area, partnering with existing volunteer organizations to set up, train, and staff an in-house senior help center a couple of times per week (or, if an Elder Court is established, on the mornings before cases are heard) is a feasible first step as conversations about instituting an Elder Court begin to take place.

The civil branch of the NY Supreme Court already has an IDV part that adopts a one family-one judge concept, handling all related disputes where the underlying issue is domestic violence. Elder Court is a natural extension of the IDV initiative as it both shares the IDV’s holistic and individualized approach and builds upon it. Despite the obstacles to establishing an Elder Court, the existence of a similar initiative within our own court and the urgent need to ensure timely justice of our elderly population should encourage the NY Supreme Court to investigate best practices for turning this vision into a reality. Magda Lopez, director of court programs and services for the Contra Costa County Court, says that step one is finding a judge who is willing to spearhead the initiative and attend to cases.[13]

The main obstacle that Elder Courts around the country face is the cumbersome process of transferring civil cases to Elder Court. Unless these cases are in some way flagged by the court, civil cases will not be referred to Elder Court until the first case management conference, about six months after filing. Attorneys can request an early transfer, but some may be reluctant because they may think that the Elder Court, in its commitment to elder justice, will be more likely to rule against them.[14] If an Elder Court is established in New York, it should be a first priority to train both judicial officers and attorneys to recognize civil, probate, and family cases eligible for transfer to Elder Court and to dispel the fallacy that commitment to elder justice correlates to any form of bias in the courtroom. Like misconceptions surrounding feminism, the objective of the elder justice movement is not to increase reward for the elderly at the expense of others: its objective is to level the playing field so that the elderly can enjoy their day in court with the same access and ability as everyone else.

There are smaller-scale, incremental changes that can be made to the design of a courtroom as well to make elder participants feel safer and more comfortable. The Americans With Disabilities Act (ADA) provides for several of these accommodations such as access to service animals, assistive listening devices, avenues for reviewing denial of an accommodation, and Realtime Reporting technology.[15] However, altering the physical design of the courtroom is rarely addressed and can go a long way towards improving courtroom access. The Eleazor Courtoom at Stetson University College of Law in Florida is the first “elder-friendly” facility of its kind. The NY Supreme Court should certainly consider incorporating several of its basic features, such as: rounded corners on tables and desks, sturdy chairs with locking wheels and firm armrests, no glare/non-buzz lighting, and an accessible witness box at floor level with no steps, all of which are straightforward measures to resolve common impediments.[16]

Lastly, judicial officers and court personnel should be trained in how to communicate and assist elderly people who come to the court. A report of several counties in California revealed that, for court staff, the greatest area in need of improvement was communicating with individuals who have diminished capacity.[17] Simple strategies such as: remembering to speak slowly and clearly, being patient while waiting for responses, using visual cues while speaking, and, for judges, stepping down from the bench if there is a problem hearing, can humanize the process and help to avoid feelings of shame or frustration on the part of the individual. For judges from those same counties, the greatest reported area in need of improvement was knowledge of state laws concerning elder abuse.[18] It goes without saying that judicial officers should be better versed in the New York statutes that govern elder abuse offenses in order to effectively administer justice in these matters.

[1] George, Ronald M.Effective Court Practice for Abused Elders. Rep. Archstone Foundation, Feb. 2008. Web. July 2017. http://www.courts.ca.gov/documents/EffectiveCourtAbusedEldersMain.pdf (Pg. 5).

[2] Lachs, Mark.Under the Radar: New York State Elder Abuse Prevalence Study. Rep. New York State Office of Children and Family Services, May 2011. Web. July 2017. http://ocfs.ny.gov/main/reports/Under%20the%20Radar%2005%2012%2011%20final%20report.pdf (Pg. 13).

[3]Ibid (Pg. 50).

[4] George, Ronald M.: Effective Court Practice for Abused Elders (Pg. 29).

[5] Ibid (Pg. 29).

[6] Cram, Joyce.Elder Court: Enhancing Access to Justice for Seniors. Rep. Trends in State Courts, 2014. Web. July 2017. http://www.ncsc.org/~/media/Microsites/Files/Future%20Trends%202014/Elder%20Court-Enhancing%20Access%20to%20Justice%20for%20Sr_Cram.ashx (Pg. 78).

[7] I George, Ronald M.: Effective Court Practice for Abused Elders (Pg. 48)

[8] Lopez, Magda. "Elder Court."California Courts. The Judicial Branch of California, 2010-2011. Web. July 2017. <http://www.courts.ca.gov/14124.htm#tab21584>.

[9] Cram, Joyce. "Elder Court: Streamlining the Legal Process to Ensure Access to Justice." Contra Costa Lawyer. Contra Costa County Bar Association, Apr. 2014. Web. July 2017. <http://cclawyer.cccba.org/2014/04/elder-court-streamlining-the-legal-process-to-ensure-access-to-justice/>.

[10] Lopez, Magda. “Elder Court”.

[11]Cram, Joyce.Elder Court: Enhancing Access to Justice for Seniors (Pg. 79).

[12] http://www.volsprobono.org/ [See http://www.volsprobono.org/sites/default/files/July-August%202017%20VOLS%20Elderly%20Project%20Calendar.pdf for a calendar of legal advice clinics offered throughout July and August]

[13]Lopez, Magda. "Elder Court."

[14] Cram, Joyce. "Elder Court: Streamlining the Legal Process to Ensure Access to Justice."

[15] "Americans with Disabilities."New York State Unified Court System. N.p., June 2015. Web. July 2017. <http://www.nycourts.gov/accessibility/faqs.SHTML>.

[16] Morgan, Rebecca. "Eleazor Courtroom."Stetson University. N.p., n.d. Web. July 2017. <http://www.nycourts.gov/accessibility/faqs.SHTML>.

[17] Effective Court Practice for Abused Elders. Rep. N.p., n.d. Web. July 2017. http://www.courts.ca.gov/documents/courtabused-eldersappendix.pdf (Pg. C-20).

[18] Ibid (Pg. C-21).