How to Legally Defend Yourself when Assaulted by an Elderly Person

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1Using Reasonable Self Defense

2Hiring an Attorney

3Settling the Case

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U.S. law includes significant protection for senior citizens. Usually if you are the victim of assault, you have tremendous legal protection. However, if you are assaulted by an elderly person, the law may not treat you as a victim. On the contrary, you may find yourself having to pay the elderly person's medical bills – even though they were the instigator. To legally defend yourself when assaulted by an elderly person, it's important that you secure legal representation as soon as possible. Understand that neither the legal system, nor the "court of public opinion," will necessarily be on your side.

Steps

Method 1

Method 1 of 3:

Using Reasonable Self Defense

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   Retreat if possible. Many states have "stand your ground" laws that expand self-defense by allowing you to use force without retreating. Other states include a duty to retreat, which means if there's a way to escape from an assault you must take it.

   • If you're assaulted by an elderly person, however, you should always retreat if there's a way to do so.
   • Even if your state's law allows you to stand your ground and defend yourself rather than retreating, this privilege may not apply when your assailant is an elderly person.
   • Particularly if you are younger and more able-bodied compared to your assailant, law enforcement and the public will have a difficult time believing that you are the victim.
   • Even if you are closer in age to the person who has assaulted you, retreat typically will be a better option for you than standing your ground and fighting the person.
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   Avoid making aggressive moves. Elderly people are much more easily injured than younger, more able-bodied people. Fighting back against the person who has assaulted you may result in significant injury.

   • If your assailant ends up being more injured than you are, there is a high likelihood that people will believe you actually started the altercation.
   • You also must be careful not to escalate the situation. In many states you lose your right to self-defense if you escalate the level of violence in an argument.
   • For example, if the elderly person has verbally assaulted you but has not physically assaulted you, and you respond by punching them, there's a significant risk that you will be viewed as the aggressor.
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   Call the police. If you are much younger than the person assaulting you, it may seem counter-intuitive to call the police. Given that senior citizens enjoy extensive legal protection, you may assume that if police do become involved they will immediately take the elderly person's side.

   • However, this isn't always the case. Calling the police first can give you the upper hand. When officers arrive on the scene, they typically will speak with you first since you're the one who called.
   • If you personally know your assailant, you may be able to provide some background to the officers that they otherwise would not know.
   • For example, suppose you care for your grandmother. She is known to lash out violently if she hasn't taken her medication. You found pills in the trash and confronted her about it, and she assaulted you.
   • In some states, the police must actually see an assault before they can arrest the person. You may not be able to do anything in the middle of an altercation, but it may be possible for a bystander to alert law enforcement.
   • Refrain from making any aggressive moves or fighting back against the person. If they are trying to punch or kick you, try to dodge or shield yourself from the blows, but don't return any blows of your own.
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   Record the altercation. If you have a smart phone, you might want to try to tape the altercation. This can be difficult if you're in the middle of an altercation. However, such a video often can shed light on a situation.

   • Keep in mind that most people will have a difficult time believing that you were assaulted by an elderly person. This is particularly true if you are younger than your assailant.
   • A video of the altercation can make it easier to identify who initiated physical violence, or who was responsible for escalating a verbal argument.
   • It's possible for bystanders to record the altercation as well. If you get into a fight in public, you might want to speak to any witnesses and find out if they shot any video.
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Method 2

Method 2 of 3:

Hiring an Attorney

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   Search for appropriate attorneys. Depending on what happened, you may need to look for a criminal defense attorney, a civil attorney, or both. Finding the appropriate attorneys to represent you is essential to legally defend yourself when assaulted by an elderly person.

   • This may seem backwards, since you were the victim of the assault. However, senior citizens have the legal upper hand in assault cases.
   • You may want to start your search by going to the website of your state or local bar association. There you typically can find a searchable directory of attorneys who are licensed in your area.
   • However, you need to do some extensive background research on the attorneys you find. You don't want an attorney who specializes in elder law, for example. These attorneys defend the rights or elderly people and may not be sympathetic to your situation.
   • You may have look searching for attorneys who defend clients who have been wrongfully accused of elder abuse. These attorneys understand that sometimes elderly people can be the aggressors.
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   Schedule several initial consultations. Ideally, you want to interview at least two or three attorneys. If you need both a criminal defense attorney and a civil attorney, consider interviewing two or three attorneys in each area. Most attorneys offer a brief initial consultation free of charge, so it shouldn't cost you anything more than your time.

   • If you think you need two attorneys, you also might try finding your criminal defense attorney first, then asking them for a recommendation.
   • Criminal defense attorneys are accustomed to their clients also being sued, so you probably can find a good civil attorney that way.
   • Also keep in mind that if you've been charged with assault, finding a criminal defense attorney is more urgent than anything else.
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   Prepare questions to ask. Most attorneys use an initial consultation to sell you on the benefits of hiring them. To get the most out of your free consultation, you need to think about what you want out of your attorney and have a list of questions ready to ask.

   • Make sure any attorney you're thinking about hiring has experience representing clients like you. This may be difficult, but you want an experienced attorney who is sympathetic to your plight.
   • Ask about the attorney's fees up front. When it comes to legally defending yourself, you're not going to find an attorney who will take your case on contingency fee, because you won't get anything if you win.
   • You also want an attorney whose work and communication style meshes with yours. The representation won't be successful if you are unable to get ahold of your attorney when you need them.
   • If the attorney works in a larger firm, find out how much of the work on your case will be done by them personally and how much will be outsourced to newer associates or paralegals. If someone else will be doing the lion's share of work on your case, you should meet them too.
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   Compare and contrast the attorneys you've interviewed. Once you've completed your initial consultations, there probably will be particular attorneys who rise to the top. Take a moment to compare them objectively so you can identify the most experienced attorney whose fees fit within your budget.

   • Don't make your choice based solely on objective criteria, though. The attorney who is best on paper may have left you feeling cold when you met them.
   • You need to be able to trust your attorney and work closely with them, so it needs to be someone who makes you feel at ease.
   • Sometimes personal feelings can be more important than experience. A less experienced attorney who is extremely passionate about your case and convinced of your innocence typically will be a better advocate for you than a more experienced attorney who is ambivalent about your case.
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   Sign a written retainer agreement. When you've decided to hire an attorney, make sure you have a written retainer agreement from them before they start any work on your case. Meet with the attorney in person to go over the agreement before you sign.

   • The attorney should explain each section of the contract, including the services they will provide for you and the rates you will be charged.
   • If there's anything you don't understand, ask for it to be explained in a different way. If there's something included in the contract that wasn't part of your initial understanding, bring it up.
   • Even though the retainer agreement may not be presented this way, you do have the ability to negotiate the terms. If you don't agree with something, ask if it can be changed.
   • When you sign the agreement, make sure you get a full copy of it for your records. When you get billing statements, compare them to the agreement and call your attorney immediately if you see charges that weren't reflected in the retainer agreement you signed.
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Method 3

Method 3 of 3:

Settling the Case

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   Work out a deal with the prosecutor. If you've been charged as a result of the altercation you had with the elderly person, you do not want to go to trial. The jury typically will be more sympathetic towards the elderly person, even if they were the aggressor.

   • Many states reclassify the degrees of assault if a person over the age of 65 is involved. This means even if you were charged with a misdemeanor, you may be charged with a felony if the altercation involved an elderly person.
   • If you have a strong case of self defense, you can discuss it with the prosecutor. However, keep in mind that most prosecutors know that the jury will be very sympathetic towards the elderly person, regardless of the evidence you have.
   • If you don't have a criminal history or any record of violent incidents in your past, you may be able to get the charges knocked down to the misdemeanor level. It also may be possible to get the charges dropped, but don't count on it.
   • Your attorney will help you work with the prosecutor to assure that your side of the story is told and you stay out of jail.
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   Offer to pay medical bills. If the elderly person was injured in the altercation, offering to pay their medical bills can help ease the situation and may keep them from trying to sue you for more.

   • It may seem unfair that you have to pay the medical bills for someone who started a fight with you. But keep in mind that the law typically is not going to see it your way.
   • This is especially true if you are young and able-bodied. You're going to have a hard time convincing anyone, absent extraordinary evidence, that the elderly person assaulted you first.
   • For this reason, you're typically better off making an offer while you can to control the damage and limit your liability.
   • Any offer should be in writing, and should specify exactly which medical bills you're willing to pay, and for how long. Otherwise you may end up paying for this person's medical care for years.
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   Consider using a release. Particularly if the elderly person has taken you up on your offer to cover their medical bills, a release can protect you from future liability. You can even make it a mutual release in which you both promise not to sue each other for damages resulting from the altercation.

   • If the elderly person has not yet sued you, a release can prevent them from doing so. This document also is called a "covenant not to sue."
   • If you've hired a civil attorney, get them to draw up a document for you and get in contact with the elderly person or their representative.
   • You also can find forms and templates online that you can use to draft a document yourself. You may want to have an attorney look over it to make sure it contains everything it needs to be effective in your state.
   • Keep in mind that in most cases, it's not going to be advisable for you to sue the elderly person, even if you were the victim of the assault. If you have questions or concerns, talk to a civil assault attorney about your options.
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   Propose mediation. If the elderly person has already filed a lawsuit against you, the most painless way to get out of it is through mediation. A neutral third party will work with you and the elderly person to find a mutually agreeable resolution to your dispute.

   • Most cities have community mediation clinics that provide mediation services at a relatively low cost.
   • You probably feel it's unfair that you should have to pay anything at all to the elderly person when they were the one who assaulted you.
   • Through mediation, you may be able to get them to admit that they were the aggressor and get out of the situation better than you would if you took the fight to court.
   • During mediation, remain calm and try to maintain an air of understanding. If you lash out at the person or get defensive, it puts you in a weaker position by making you appear more aggressive.
   • Mediation is confidential and voluntary. This means if you aren't able to come to an agreement, you won't be forced to accept something you don't like. Anything said in mediation, stays in mediation and can't be used against you later on.
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   Sign a written settlement agreement. Any agreement you make with the elderly person to resolve your dispute should be in writing. This ensures that the settlement is legally binding on all parties.

   • Read through any settlement agreement carefully before you sign it. If you've hired an attorney, have them look over it as well.
   • Depending on whether the elderly person has already filed a lawsuit against you, the settlement agreement itself may not be confidential. Keep this in mind if the agreement includes any apologies or admissions of guilt.
   • Generally speaking, you don't want to agree to anything that includes a statement where you admit that you were at fault – either for the altercation as a whole or for the elderly person's injuries.
   • If you're satisfied with the agreement and both you and the elderly person sign it, make sure you have copies of the signed agreement for your records in case anything comes up later.
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