Friday, May 27, 2016

How NOT to Fight a Restraining Order in California

Earlier this week, I wrote a post about some specific strategies that I've successfully used to defend against restraining orders in California. I've previously published several posts explaining the legal procedures that are involved in restraining order hearings. If you haven't already done so, start by studying my old posts.  They'll give you a good understanding of what to expect, how to prepare and what to say when you're standing in front of the judge.

Today, I want to discuss a few bad strategies -- what NOT to do at your big court date.  These tips are all based on restraining order proceedings that I've personally observed in my career.  You can guess how they turned out.

If you make these arguments in front of a judge, you will sabotage your own case.  You'll probably get laughed at.  You'll definitely lose, and then you'll wish you had taken my advice.  Don't be a loser.  Read this post carefully, then call my office for a free consultation.

Bad Advice #1:  Waste the Judge's Time With Irrelevant Arguments

Remember, the #1 rule at restraining order hearings is to STAY ON POINT.  If you're responding to a restraining order petition (someone has filed a restraining order against you), the ONLY ISSUE that the judge cares about is whether or not you have engaged in some conduct that could form the basis for the issuance of a restraining order.  That conduct may include actual violence, threats of violence, or some course of conduct that serves no lawful purpose except to annoy or harass the petitioner.  You must focus 100% of your energy and attention to proving that the alleged harassment did not occur.

The judge does not care if you're a good person, or if the petitioner is a bad person, or if you've done nice things for the petitioner, or if the petitioner has lied about something unrelated in the past, or if the petitioner is promiscuous, or if the petitioner stole money from you once or if the petitioner is an alcoholic.  The judge is not interested in determining who was responsible for your breakup.  All of that stuff might be important to you, but it is completely irrelevant to the one question on the judge's mind: have you harassed the petitioner?

If you're talking about anything in the world other than justifying, explaining or denying the accusations against you, you're wasting the judge's time with irrelevant arguments.  Knock it off.

Bad Advice #2:  Ignore the Accusations That the Petitioner is Making Against You.  Instead, Just Attack the Petitioner's Character

This goes back to my first point.  If you're discussing anything other than the accusations against you, you are off topic.

When you're accused of harassing the petitioner, it is not helpful to argue that the petitioner is a terrible person.  Those arguments are irrelevant because you're still not allowed to harass terrible people.

If you can prove that the petitioner is lying about something on the petition, then focus your attention on proving that the specific accusations against you are untrue.  The judge will not allow you to introduce evidence that the petitioner has lied about something unrelated on another occasion, though.  A 5-minute hearing would take 2 weeks if the judge allowed both sides to present evidence of every dishonest act that their opponent has ever committed since the beginning of time.

Here's an example that I see very often in restraining order hearings:

Petitioner:  Your honor, my ex-boyfriend was abusive toward me during our relationship.  Since we broke up, he has been showing up at my house and my workplace unannounced.  He has also been sending threatening messages to me and to my kids.

Respondent:  Your honor, the petitioner has 2 DUI convictions.  She stole my checkbook one time and she cheated on me during the relationship.  She cheated on her last boyfriend, too.  I helped pay for her kid's private school and I made her car payments for 3 months.  She never even said "thank you".

Judge:  I've heard testimony from the petitioner that the respondent committed acts of violence, threats, and harassment against her.  Having had an opportunity to deny or explain the allegations, the respondent has failed to do so.  Since the respondent has not denied the accusations, I will find that they are true by a preponderance of the evidence.  The restraining order is granted and shall remain in the effect for a period of 5 years.  Next!

Bad Advice #3:  Continue Harassing the Petitioner While the Case is Pending

I understand that you're angry and frustrated about the restraining order that your ex has filed against you.  Those feelings are natural.  For many people, the first thought is retribution.  You want to punish your lying, ungrateful ex-girlfriend for making all these ridiculous accusations.

You must resist the urge to retaliate.  Your revenge will be beating the order and walking out of court with a smile on your face.

Do not file frivolous legal claims against the petitioner before your court date.  Do not post angry or defamatory messages online.  Do not contact the petitioner's friends and family.  If the petitioner is trying to provoke you, don't take the bait.  Basically, don't do anything to make yourself look crazy before your hearing.

If the judge finds that you made some mistakes in the past, but you've moved on and harassment is unlikely to occur in the future, then you have a good chance at beating the restraining order.  If, on the other hand, you've demonstrated that you have some serious emotional issues, you have a tendency to engage in compulsive behavior and you're consumed by anger at your ex, then you will lose.

Keep it cool.  Be the mature one and show the judge that this restraining order against you is unnecessary.

Bad Advice #4:  Show Up Unprepared 

If you have witnesses who will corroborate your alibi, bring them with you.  If you have documents or photos that you want the judge to consider, print them out and organize them before you come to court. All of your proposed exhibits should be in paper form so that they can be stored and cataloged in the court's files.

Study my previous posts about restraining orders.  Take some quality time to understand the law, the rules of court and the issues that will be presented.  Make some notes to organize your thoughts. Restraining order hearings go quickly and you will be nervous when you're on the spot.  If your thoughts are scattered, the judge will have a hard time following your good arguments.

Try to predict the arguments that your opponent will present and prepare for those issues in advance. You cannot simply gloss over the bad facts; you must confront them with valid, rational, legal defenses.

Look respectable.  If you have a suit, wear it.  If you don't own a suit, at least put on a tie.  If you don't own a tie, at least wear long pants, closed-toe shoes and a collared shirt.  If you don't own those things, then you probably have bigger problems.  Stop reading now and go buy some decent clothes.

Bad Advice #5:  Take Legal Tips From Your Non-Lawyer Friends and Family

It doesn't matter if your mom thinks you have a great legal argument.  Your mom isn't going to be your judge, so she's not the one we need to convince.

It's your friends' job to be supportive and to tell you what you want to hear.  It's your lawyer's job to give it to you straight.  Your lawyer understands the law and the rules of evidence.  Your friends don't.

It drives me nuts when a client calls me and says, "I know you told me to stay away from my ex-girlfriend's apartment, but my mom thought it would a good idea for me to go try to talk to her one last time."  I also get a lot of this one: "I know you said that it was irrelevant, but all my friends think the judge really needs to know that my ex-girlfriend is crazy."  Stop listening to your friends.  They're trying to help, but they're not helping.

Here's some good advice:  if you've been served with a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  We handle all types of restraining orders in all Southern California courts.

Thanks for reading.