Thursday, August 4, 2016

What is the Best Evidence to Present at a Restraining Order Hearing?

In the old days, restraining order hearings typically involved one person's word against another's. The petitioner would testify that her ex-boyfriend threatened her. The respondent would deny that he ever made any threats, and the judge would try to determine which party was more credible.

Today, more and more restraining orders involve electronically recorded statements. These may include text messages, emails, voice mails and messages sent over social media. The judge doesn't have to weigh a witness's credibility based on some arbitrary guess anymore; he or she can simply read the messages or listen to the voice mail recordings to determine who is lying and what was said.

A single message can make or break your case. It often does. In my experience, judges are looking for that "smoking gun" that makes their job so much easier. On any given day, the court has a lot of cases to get through. They don't have the time or the patience to conduct long, drawn-out hearings. If the petitioner comes to court prepared with a copy of a text message from the respondent that clearly conveys a threat of violence, the judge can quickly grant the restraining order and move on to the next case.

The same is true for the respondent. If you've been served with a restraining order but you have messages from the petitioner in which the petitioner admits to filing the case for an improper purpose, you should be prepared to show those messages to the judge. If the petitioner has some message from you in which you make some statement that could be construed as a threat, you should be prepared to justify, explain or deny the accusation.

If you have a very valuable message that clearly proves your case, print it out, make a couple copies, and bring it to your court hearing. The judge will not look at your phone, and your phone cannot be filed as evidence. Do not alter or edit the message in any way. Make sure that the message is legible and organized into some format so that the judge can make sense of it.

The judge is not interested in reading your entire email history since the beginning of time. He or she wants the short version of the story. If you have some valuable message, make it the centerpiece of your argument. Do not bury your best evidence in a sea of worthless nonsense. Remember, you have a very limited amount of time to present your arguments. Do not waste that time presenting useless evidence.

You should also consult with an experienced expert to determine whether or not your message is really as valuable as you believe. My regular readers are tired of hearing this, but always remember the "name of the game" in restraining order hearings: keeping it relevant and being concise. That means making sure that your arguments actually go to the issue and help prove your point. The issue at your hearing is whether or not the respondent has committed violence against the petitioner, has threatened to commit violence against the petitioner, or has engaged in a course of conduct against the petitioner that serves no lawful purpose except to annoy or harass the petitioner. The judge does not care if you're a good person, or if the opposing party is a bad person, or if you've done nice things for them in the past, or if they've done mean things to you in the past. The judge is not interested in determining who was at fault for your breakup or who drinks too much. Those arguments are a waste of your time and the judge's patience.

If you have questions about restraining orders in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. We have extensive experience litigating all types of restraining order cases, including cases based on domestic violence, civil harassment, workplace violence and elder abuse.

Thanks for reading.

Orange County Restraining Order Lawyer