Justice Delayed is Justice Denied | California’s Trial Preference for Seniors
- July 21, 2020 - Elder Financial Abuse,
It’s a legal maxim that justice delayed is justice denied. This is particularly true for senior plaintiffs.
Defendants generally want to slow down litigation. The COVID-19 pandemic provides an even greater opportunity for delay. Access to courts is effectively blocked and justice is denied or at least substantially delayed to those who have been wronged.
A functioning civil justice system constrains predatory conduct. Our current system is not fully functioning. And, predatory conduct is not fully constrained.
California statutes can, under normal circumstances, provide some protection to seniors. California Code of Civil Procedure Section 36(a) allows a party 70 years or older to seek a civil trial preference. It’s not entirely clear if during this time of the COVID-19 pandemic that the time mandates can be met.
Nearly all of California’s Superior Courts have enormous criminal and civil case backlogs. There are certain requirements to meet in requesting the trial preference. The senior trial preference is to be granted if the party’s health is such that the preference is necessary to prevent prejudicing the senior’s interest in the litigation.
Evidence of the party’s health can be established by a declaration of the attorney, based on information and belief, describing the party’s medical diagnosis and prognosis. These can include personal observations. Such declarations may be challenged as insufficient.
The better approach is a declaration from the party’s treating physician that explains the party’s symptoms, treatments, injuries or disease. If the party is dying, preference may be granted. This requires clear and convincing evidence that the party “suffers from an illness or condition raising substantial medical doubt of survival beyond six months” and the interests of justice will be served by granting preference.
Whatever preference is granted, it will still be subject to the general orders of the local Superior Court. For example, the Los Angeles County Superior Court has ordered that it will not set any civil jury trials before January 2021.
So, let’s reiterate what we know. The courts are not fully functioning. There are legal means for elders with health problems to gain a trial preference within as little as 120 days from the court order on the preference. Criminal jury trials will have priority over civil jury trials. This is our midsummer 2020 reality.
Hackard Law represents seniors and their families in estate, trust and elder financial abuse cases. If you’d like to speak with us about your case, call us at 916 313-3030 or visit us online at hackardlaw.com.