Wednesday, March 18, 2015

How to Get (or Fight) a Restraining Order in California: Part 2

I have previously written about the process of applying for (or fighting against) restraining orders in the State of California.  I described the nuts and bolts of preparing the petition, having the proper documents served on the opposing party and filed with the court, and appearing before a judge for a series of hearings on the matter.  That post is available here.  Part 3 in this series is available here.

Today, I wanted to discuss the strategy involved in preparing for your big day in court, along with a few things to keep in mind when you're in front of the judge.  I have assembled some helpful tips based on my experiences litigating on behalf of clients both for and against restraining orders.

Know Your Judge

The first thing I want to emphasize is the unique nature of restraining order proceedings.  These hearings are really unlike any other type of court hearing that you might have previously been involved with.

One thing that makes these hearings so unique is their informality.  While the typical rules of evidence and civil procedure still apply, judges often adopt their own courtroom policies to streamline the process and to hear a large number of cases in a limited number of courtrooms.

Every judge in every courtroom has his or her own daily routine for calling cases, hearing evidence and issuing rulings in a timely manner.  Being familiar with your judge's personal style will give you a huge advantage over your opponent.  If you've never appeared before a particular judge, you should strongly consider hiring an attorney who has.  In the alternative, you should make time to sit in and observe a day of proceedings before your court date.  Pay attention to types of arguments that the judge finds persuasive.  Being familiar with your judge and the court rules will also help you feel more confident and relaxed when it's your turn to present your case.

If you read my previous post about restraining orders (available by clicking the link, above), you know that the judge is looking for "clear and convincing" evidence of harassment.  If the petitioner is able to prove that he or she has been the victim of harassment, then the petitioner wins.  The law defines "harassment" as 1) violence, 2) credible threats of violence, or 3) a course of conduct, directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose.  That last part ("...that serves no legitimate purpose") is the wild card.  Judges have very different opinions about what does and does not constitute a "legitimate purpose".  For example, some judges feel that debt collection is a legitimate purpose.  Others disagree.

Abe owes Ben some money and Ben calls Abe repeatedly, asking to be repaid.  Abe is annoyed and alarmed by the repeated phone calls.  He asks Ben to stop calling him, but Ben starts showing up at his home and place of work.  Abe finally petitions for a restraining order against Ben.  Should the order be granted?

Some judges will find that Ben has engaged in a course of conduct, directed at Abe that seriously alarms, annoys and harasses Abe and that serves no legitimate purpose.  If Ben feels that Abe owes him money, he should sue Abe.  Other judges are likely to find that debt collection is a legitimate purpose, as long as no violence is used or threatened.  Being familiar with your judge and his / her opinions on the subject will give you an advantage by allowing you to craft your arguments accordingly.

Be Prepared

Proper preparation will also give you an advantage over your opponent.  This includes bringing any necessary documents to court with you for your hearing.  These documents may include phone records, copies of text messages and emails, photos of anything relevant and witnesses who will testify on your behalf.

If you have witnesses who will corroborate your side of the story, it is important that they personally appear for the hearing.  The judge may  have probing questions for this witness, so make sure you have a very clear idea of what he or she will say under examination.  You don't want to be surprised by anything.

If you intend to present witnesses, you should have those witnesses subpoenaed.  A subpoena is an order to attend court.  If you fail to issue a subpoena and the witness doesn't show up to court, you are out of luck.  You may ask for a continuance, the judge is likely to deny your request if you can't show that you did your due diligence by properly issuing a subpoena to ensure the witness's presence.

There is a process (and a fee) for issuing subpoenas to police officers who you want one to testify on your behalf.  It's a little complicated, but an attorney can help.

Consult With an Attorney

This is part of "being prepared".  Some people will appear at their restraining order hearings represented by counsel.  Others will come alone.  Of course, being accompanied by a qualified, local attorney is the best way to ensure that your case gets a compelling and convincing presentation.

A lawyer will understand the rules of evidence -- what is admissible and what is not.  Your attorney will draft the necessary documents and properly serve them on the opposing party.  He or she will issue subpoenas and prepare witnesses.  Your lawyer will make sure that you understand the important issues and that those issues are communicated to the court in a clear and concise manner. He or she should allay your anxiety and give you a confident peace of mind in knowing that things have been done correctly the first time.

Stay on Topic

This is the best advice I have for anyone involved in either side of a restraining order hearing.  I saved it for last.  Think of this tip as "dessert" -- your reward for reading my entire post.

Remember, as I mentioned above, the issue at a restraining order hearing -- the only issue -- is whether or not the petitioner can prove by clear and convincing evidence that he or she has been the victim of harassment.  That's the question that the judge must answer, and that's the only thing that the judge cares about.

The judge does not care if you're a good person.  The judge does not care if the other party is a bad person.  The judge does not care if the other party deserved whatever you did to him.  The judge does not care if the other party has lied about something irrelevant in the past.  The judge does not care if you've done nice things for the other party in the past, or if the other party has done mean things to you.  Do not waste the judge's time (and your own) with these types of arguments.  There are a lot of other cases on calendar and the judge is not interested in hearing irrelevant testimony, no matter how important these issues are to you.

Any time that a relationship devolves to the point where one person files a restraining order against another, it's safe to assume that both parties are angry about a lot of things.  You might have a lot that you want to get off your chest, but the courtroom is not the place to air these grievances. When you go off topic, the judge loses interest and you risk burying your good arguments in a pile of bad arguments.

Everything you say, every piece of evidence you present and every witness you call should be directly related to proving that harassment has (or has not) occurred.

If you or a loved one has questions about a restraining order, call my office for a free attorney consultation. Our expert staff has an excellent track record in litigating restraining orders all over Southern California.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney