This article is published courtesy of the April 2010 State Bar Young Lawyers Division newsletter.

May 5, 2010 – Can your client hear your advice? Can your client see you? Can your client see and read the document you present to them? Can your client find your office? Do you know the answers to these questions, or are you just assuming all the answers are “yes?” These assumptions cannot be made with elder law clients because the answers might very well be “no.” Elder law attorneys must possess and employ a unique skill set to address these concerns and effectively communicate with their clients.¹

Every lawyer must aim to be an effective advisor, counselor, and advocate for their client regardless of any impediments that may stand in their way.² Elderly clients present unique communication concerns for lawyers that may create obstacles in reaching that standard. Communication concerns arise from physical and psychological effects of aging as well as sociological differences. An elder law attorney’s negotiation skills are effective tools used to overcome these issues and achieve beneficial, valuable and efficient communication with their client. These skills can be used to conduct a “negotiation style” conversation, which will enable the attorney to determine the client’s interests, positions, comparison standards for fairness, and vulnerabilities despite any limitations the elderly client may have.

Negotiation has many components including listening, preparation, information gathering, and meeting organization. Implementing all of these skills in a “negotiation style” conversation allows for an interaction that is respectful, efficient, and productive. A negotiation, as opposed to a lecture type conversation or an emotional conversation, ultimately creates a relationship of trust which allows the elder law attorney to fulfill her role as counselor, advisor and advocate.

Why are elder law clients unique?

Elder law is inevitably becoming a booming area of law because of the increasing number of potential clients. Aging people will force institutions, such as the law, to accommodate a staggering increase of elders.³ Between 2010 and 2050, the population of United States Citizens over the age of 65 is estimated to rise 10%.⁴ This is the largest increase for this demographic in recent history. With this population increase there will be a corollary increase in litigation.⁵ Specifically, with the increase in the elderly population, there will be more elderly people involved in litigation.

Aging impacts the way a person operates on a daily basis, therefore, aging will affect the way an elderly person communicates with their attorney. Standard interviewing styles cannot be strictly applied to this demographic because of the ways aging affects a person’s ability to communicate, in large part based on several common ailments.

Some of the most common changes that occur when aging are in the neurological system, cardiovascular system, musculoskeletal system and the respiratory system.⁶ Essentially, aging makes all these systems less efficient and slows older people down, in general.⁷ The ailments aging people experience, like hearing deficiencies, speech difficulties, trouble moving around, how tired a person is, and how long they can be attentive for, directly affects how an attorney is able to interact and communicate with their client.

An attorney must be careful not to underestimate the still keen cognitive ability of elderly people. Attorneys may misinterpret an elder’s reason for not understanding as a cognitive issue. The problem is not that elders do not understand what is being said due to a cognitive problem, but rather the client may have trouble conveying their thoughts due to age related factors. For example, a “language barrier” may exist between the elderly client and their attorney.⁸ Often, the same words may mean different things to people from different generations. Additionally, the elder may not hear you or may have trouble articulating their intended response due to age related changes in their voice.

Respect is one of the most important things omitted from conversations between elders and younger attorneys.⁹ Many people use what professionals call “elderspeak.”¹⁰ Elderspeak is when people use a tone of voice and vocabulary which one would normally use when talking to a baby, commonly referred to as “baby talk.” Elderspeak is when people treat elders as unintelligent and out of date. An elder law attorney must be very careful to address their clients with respect, regardless of their tendency to use Elderspeak.

What is a negotiation and why should I conduct one with my client?

To be a good counselor and attorney, one needs to learn the client’s interests, target points, strengths, vulnerabilities, and goals.¹¹ Negotiation skills are helpful tools to discover these things. Once you discover your clients goals and the reasons for them, it will be much easier to deliver your advice.

Attorneys must provide advice to their clients and advocate for that advice, even when it seems adverse to the outcome the client may think they desire.¹² Conducting a negotiation with your client will help deliver advice that may be contrary to their perceived interests. Using negotiation skills allows the client to be more involved in the conversation and ultimately leads to a more productive meeting. The use of negotiation skills is especially helpful with the majority of elderly clients who require supplemental skills to the standard interviewing techniques.

What are negotiation skills?

Negotiation skills are the tools that attorneys can use to overcome the communication challenges that elder law clients present. Negotiating skills include, but are not limited to listening, preparation, physical presence, and making agendas. Negotiating skills assist the lawyer to discover the client’s interests, target points, strengths, vulnerabilities and goals.

Active listening is a core skill in both an effective communication and a negotiation context. An attorney must hear instead of listen: “hearing is a physical perception; listening is a mental activity. Listening requires concentration, cooperation, and an open mind.”¹³ The use of non-verbal communication, like active listening, is implemented through silence, facial expression, touch and closer physical proximity.¹⁴ These listening techniques help develop empathy, intuition and presence.¹⁵ If an attorney listens to their client, especially to tone of voice, body language, and other non-verbal communications, the attorney will better understand the client’s positions and interests.

Listening will aid in uncovering generational and age related differences. Elderly people may have difficulty using non-verbal communication due to age related physical challenges. Similarly, the attorney may have trouble reading the elder’s non-verbal cues. For example, when an elderly client seems restless, an attorney may assume that this means the client is not interested in what they are saying. In fact, the client is interested, but cannot sit for long periods of time. Due to an elder’s loss of muscle strength and other ailments that may restrict movement, elders may not have the same type of body language as younger attorneys are used to. Also, facial expressions may be less dynamic or an elderly person’s hands may tremor. Attention and awareness of these issues will aid the attorney in their communication with the client.

An attorney’s physical presence is important and can affect the outcome of a negotiation.¹⁶ Attorneys should not underestimate the importance of “emotional intelligence,” that is, the ability to display moods and behaviors that match the situation.¹⁷ “High levels of emotional intelligence . . . create climates in which information sharing, trust, healthy risk taking and learning flourish.”¹⁸ An attorney’s mere smile is one of the most important factors regarding physical presence and a positive outcome. “A leader’s emotional style drives everyone else’s moods and behaviors.”¹⁹ An attorney’s presence affects the relationship with their client and you should react appropriately to the client’s emotions.

Preparation for a negotiation involves goal setting, identifying the issues, consulting with others, and analyzing other parties. For an elder law attorney, preparation for a meeting, conversation, or indeed, a negotiation with the client is different than preparing for the same with a younger client or with opposing counsel because of the differences between the elderly client and her younger attorney. The attorney must research the specific generational and cultural differences for each individual client, as well as the aging ailments that their client may have. Preparing for and knowing these differences will facilitate conversation: it will allow the attorney to focus on the client and their legal issues, instead of being preoccupied with the physical, generational or cultural differences elders have.

Agendas can provide a way to keep the client focused on the facts and legal issues the lawyer needs to discuss. Agendas are helpful to separate emotions from fact. Elder law issues tend to revolve around “income and asset protection and preservation.”²⁰ This includes how they will get money (pension, social security), the money’s security, and age related pay discrimination. When your life’s income and your assets are on the line, emotions run high. If emotional and interpersonal relations start to rule the conversation, having an agenda can pull the parties back onto topic.

Why are negotiation skills helpful in the Elder law context?

The client’s interests, no matter how unsound, unreasonable and irresponsible, are your interests, as their representative in the adversary/judicial system and advocate of the client’s position. However, it is also the attorney’s job to advise. Sometimes clients, especially clients with communication concerns, are difficult to advise. Negotiation skills help attorneys be the best advisor for the elder law client.  

Using negotiation skills in client conversations will also assist the elder law attorney to be the best advocate and evaluator for their clients. An attorney cannot be an effective advocate or evaluator without discovering their client’s interests. If an attorney is unaware of a client’s communication limitations, or ignores those limitations, it is likely that that attorney will never learn the client’s interests. An attorney cannot be a successful advocate, as required under the Wisconsin Rules of Professional Conduct for Attorneys, without knowing the client’s interests and needs.

Conclusion

The number one concern for clients, generally, is difficulty in communicating with their lawyer. Negotiation skills are useful tools elder law attorneys can employ to remedy that number one complaint and to ensure effective communications with elderly clients which is integral to effective, ethical legal representation.

Sara Sitzmann, Sitzmann Law Firm Ltd., Appleton, practices in elder law, business law, civil litigation, real estate, employment, estate planning, family, and criminal law. Sitzmann received her Juris Doctor from the University of St. Thomas, School of Law in Minneapolis, Minn. There she had the opportunity to partake in a Mentor Externship program, Judicial Externship program in Hennepin County District Court, the Interprofessional Center for Counseling and Legal Services Elder Law Practice Group, and the Intramural Negotiations Competition.

Endnotes 

¹These are questions that I have personally had to address in my experience in the University of St. Thomas, School of Law’s Interprofessional Center for Counseling and Legal Services Clinic, Elder Law practice group. I found that my assumptions about the client’s abilities were often incorrect. Those experiences motivated this research to become a more skilled communicator.
²Wisconsin Rules of Professional Conduct for Attorneys, Preamble.
³See Kathleen McInnic-Dittrich, Social Work with Elders; A Biopsychosocial Approach to Assessment and Intervention, 1 (Pearson Education, Inc. Boston 2005).
⁴U.S. Census Bureau, The 65 Years and Over Population: 2000 http://www.census.gov/prod/2001pubs/c2kbr01-10.pdf (last updated October 2001).
⁵National Center for State Courts, http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html (last updated December 10, 2008). ; See Linda R. Singer, Settling Disputes; Conflict Resolution in Business, Families, and the Legal System, 2 (Westview Press, Boulder 1990).
⁶See Kathleen McInnic-Dittrich, Social Work with Elders; A Biopsychosocial Approach to Assessment and Intervention, 1 (Pearson Education, Inc. Boston 2005).
⁷Id.
⁸Mary Pipher, Another Country, 19 (Riverhead Books, New York, NY, 1999).
⁹Interview with Dixie, Lou, Tom, Violet, and Ken, Sartell Choir, (November 25, 2008).
¹⁰John Leland, In ‘Sweetie’ and ‘Dear,’ a Hurt for the Elderly, http://www.nytimes.com/2008/10/07/us/07aging.html?ref=us (last updated October 7, 2008)
¹¹Roger Fisher and William Ury. Getting to Yes; Negotiating Agreement Without Giving In. (New York: Penguin Books, 1981).
¹²See Rules of Professional Conduct for Attorneys.
¹³Id.
¹⁴Kacperek L, Non-verbal communication: the Importance of Listening, (British Journal of Nursing, March 1997).
¹⁵Id.
¹⁶Daniel Goleman, et al, Primal Leadership: The Hidden Driver of Great Performance,44 (Harvard Business School Publishing Corporation, 43-51, 2001). This article discusses the importance for leaders to have a positive physical presence. Attorneys are leading their clients through legal matters, therefore, leaders can be equated to lawyers.
¹⁷Id.
¹⁸Id.
¹⁹Id.
²⁰Lawerence A. Frolik, Aging and the Law. (Temple University Press, 1999).