This blog is intended to explain what the Defendant (the one who was served with the temporary restraining order) needs to do at the final hearing. Part II of this series explains what to do from the Plaintiff’s perspective. If you are a Defendant, you will find the information in that blog helpful. However, this blog is intended to tell you exactly what you should do from a Defendant’s perspective.
So you’ve been served with a Temporary Restraining Order. Now what? You were likely confused and upset when you were served and probably wondered how this could happen without your participation. However, the law views Temporary Restraining Orders as emergent so for that reason, the Court is liberal in granting temporary restraining orders based only upon the information supplied by the person who is applying for it. It doesn’t end there though. The Court schedules a hearing to take place shortly after the temporary restraining order is entered so that you, the Defendant, have an opportunity to be heard. The hearing is supposed to take place within ten days of entry of the temporary restraining order. Here is what you can expect.
As we explained in Part II of this series, the Plaintiff will present his or her case first. He or she will testify as to the allegations in the Complaint (i.e. in the original temporary restraining order) and can present any other evidence to prove his or her case. Plaintiff has to do this by a “preponderance of the evidence,” which means that it’s more likely than not that things happened the way the Plaintiff say they happened. You will have “notice” of the things Plaintiff is going to say happened because it should be explained (although usually not in a great amount of detail) in the Complaint/ temporary restraining order. If the Plaintiff attempts to bring up any events that he or she did not reference previously in the Complaint/ temporary restraining order, you should object since Plaintiff is not permitted to bring up any other events and is confined to the “four corners” of the Complaint. This also applies to the prior history of domestic violence that may also be referenced in the Complaint. It is very important that you as the Defendant attempt to limit Plaintiff’s testimony and evidence as much as possible. This is one such way to do it.
Once Plaintiff has testified, you can “cross examine” him or her, which basically means that you can ask questions about the testimony and any other evidence to try discredit them or disprove the way they claim the events happened. This also means that you can present any evidence such as text messages, letters, phone logs, etc. that may be useful in discrediting them and ask them questions about it. You should be prepared with an outline of your questions before you go to Court, but also be ready to ask any other logical follow-up questions that may be important once you have actually heard his or her testimony that day in Court. This same Q and A will apply to any other witnesses that may be present that day to testify on the Plaintiff’s behalf. You may not know who those witnesses are going to be in advance of the trial. Keep in mind that you are entitled to ask that any witnesses present that day be sequestered by the Court, which means they should not be allowed to sit in the courtroom order and listen to Plaintiff’s testimony before they give their own testimony.
Once Plaintiff’s case is done, an attorney on your behalf would likely make a verbal motion for the Court to dismiss Plaintiff’s case on the basis that he or she has not satisfied his/her legal burden in demonstrating that domestic violence has occurred. You certainly should not be afraid to do that too if you are representing yourself. However, sometimes these can be somewhat complex legal arguments. We would recommend, at the very least, that you consult with an attorney for some guidance on how to do this if you intend to do it yourself. Preparation is very important.
If the motion to dismiss is denied (and in most cases, they are) you will then be instructed by the judge that you can present your defense. That means that you should testify and explain your version of the events. This is your opportunity to either deny the allegations and/or explain that things did not exactly happen the way Plaintiff says they did. This is also your opportunity to present any other evidence such as call logs, photos, text messages, or any physical evidence that supports your testimony and/or refutes the Plaintiff’s testimony. These must be presented in accordance with the Rules of Evidence so if you plan to represent yourself, this is another reason why it would be prudent to consult with an attorney to go over any potential evidentiary objections so you can make sure you have the right evidence available to present to the Court.
As you can see, this is a fairly technical proceeding with a very specific purpose: to refute the Plaintiff’s allegations and prove either that that things did not happen the way Plaintiff says they did and/or that, even if they did, the events did not rise to the level of domestic violence sufficient to enter a permanent Final Restraining Order.
This is a very simplified explanation of what will happen at the final hearing. You should also review Part II of this Series for additional information. However, this information cannot substitute legal advice as to the specific circumstances of your case.
We strongly recommend that if you are a Defendant in a domestic violence hearing, that you be represented by counsel who routinely engages in domestic violence proceedings. The law is nuanced and you need to make sure that you know all of the tricks of the trade to properly plan and execute your legal strategy.
Contact us for a consultation if you would like to know more.