his Is The
Bigtime
Fighting
the issuance of a restraining
order is very difficult, but
it can be done. THERE IS HOPE!
This section will review the
restraining order process,
and some strategies and tactics
that non-lawyers can use to
possibly stop an order from
being issued or extended.
The subject
is legally and politically
complex, and I have been reluctant
to even talk about these things,
lest the people who have learned
how to get these orders wrongly,
also learn how to stop you
from stopping THEM.
These strategies
and tactics suppose that the
allegations against you are
false or greatly exaggerated.
In today's political climate,
most of them are. If you are
the victim of false allegations
of abuse, this material should
be of help. It won't guarantee
success, however, and you
should really consider getting
a professional to help you,
as you would with any specialized
and difficult task.
First, Understand the Law
The restraining
order law is perhaps the second
most unconstitutional abomination
in our legal system, after
our so-called child protection
(DSS) laws. The restraining
order process is designed
to allow an order to be issued
very easily, and to be appealed,
stopped, or vacated only with
the utmost difficulty. It
is the product of evil twisted
minds, who have no respect
for our traditional sense
of justice or of the protections
provided in our Massachusetts
Constitution of due process
of law. And they like it that
way, thank you very much.
The motives
for this law are legion. First,
it makes the Commonwealth
a bunch of money, by allowing
it to leverage massive Federal
grants. It makes feminist
victim groups a lot of money
by providing millions in state
and federal grants to stop
'domestic violence.' It makes
a lawyers and court personnel
a lot money as they administer
the Godzilla-sized system
they have built to deal with
these orders. It makes police
a lot of money, as they are
able to leverage huge grants
for arrests of violators.
It makes mental health professionals
a lot of money, dealing with
the mandatory therapy always
required in these situations.
It makes thousands of social
workers a lot of money providing
social services for all the
families that the law destroys.
It makes dozens of mens batterers
programs a lot of money, providing
anger management treatment,
ordered by courts in these
proceedings.
Hmmmm. .
. Do we see a pattern here?
A common thread?
Not only
is the almighty dollar a motive,
but so is the desire by the
doctinaire Marxists who run
the system to destroy our
limited constitutional government
and override the rights preserved
by our Massachusetts Declaration
of Rights.
In thousands
of ten minute hearings held
all over the Commonwealth,
judges are now able to do
what the Marxists have only
dreamed of doing before now,
and could never hope to do
before they were able to use
the pretext of 'domestic violence.'
However, the real violence
is almost always to the rights
of the defendant, and to the
Constitution itself, just
as the elites intended.
Continuing
on the theme of power, look
who gains by the imposition
of this hideous law. Feminist
groups gain huge political
power. Angry, manipulative
women can use an order to
remove a spouse for a variety
of reasons - want a new boyfriend,
don't want to go through the
tedious custody process to
get kids, want freedom, want
child support, want vengeance,
etc. The anti-gun wackos can
disarm a huge chunk of the
populace without the inconvenience
of legislation. The pro-tax
crowd can clamor for more
money 'for the children'.
The educrats can enhance their
power by denying school records
to anyone with a restraining
order. The offense to families
by this law is truly frightening.
In restraining
order hearings, judges may
ignore ALL traditional due
process protections such as
jury trials, the rules of
evidence, the right to innocent
until proven guilty, etc.
They may also usurp several
other dearly held rights,
such as the right to be with
one's children, to occupy
one's own home and property,
or travel where one pleases.
No one has yet come up with
so demonic a perversion of
our legal system to match
the breathtaking scope of
the unconstitutional deprivations
of this law.
What is
the actual legal basis for
getting an abuse restraining
order? Many courts issue restraining
orders without following the
requirements of the law (which
are already so flimsy as to
be a mockery.) If a person
comes in to court (called
the ‘complainant' or ‘plaintiff')
and whines about feeling ‘fear',
a court will often issue an
order, even though many times
it is improper and illegal
to do it.
So, what
does a person actually have
to prove to get an order legitimately?
The law
states that the court can
issue an order to protect
a complainant from "abuse".
Abuse is defined in Massachusetts
General Laws, (M.G.L.) Chapter
209A Section 1. Here is the
relevant part, defining abuse:
The occurrence of one or more
of the following acts between
family or household members:
-
attempting to cause
or causing physical
harm;
-
placing another in fear
of imminent serious
physical harm;
-
causing another to engage
involuntarily in sexual
relations by force,
threat or duress.
The clause
which is most misused is (b)
above, "placing another
in fear of imminent serious
physical harm." Often
a mere allegation of fear,
without showing a factual
basis for that fear, is enough
for a court to issue an order.
What does
the law require to properly
issue an order? First the
harm has to be ‘imminent',
that is immediate, right there,
right now. Not a vague threat
to do something some day.
Not a phone call from a far
location. Next, it has to
be ‘serious'. The attorney
general, on a ballot referendum
to overturn some recent changes
to the domestic violence laws,
defined ‘serious bodily injury'
as follows:
"Injury
that results in a permanent
disfigurement; long-term loss
or impairment of a bodily
function, arm, leg, or organ;
or substantial risk of death."
Lastly,
the fear has to be of ‘physical'
harm, not emotional harm,
psychic harm, hurt feelings,
or any number of other non-physical
issues that people commonly
get orders for.
If courts went by this definition
strictly, fewer frivolous
orders would be issued. However,
as you likely know, judges
often issue an order if they
feel it should be issued,
regardless of the law's requirements.
Understanding the Restraining
Order Process
General
Information
There is
only one type of order that
is issued under Massachusetts
Gen. Laws Chapter 209A, with
a lot of variable terms. They
can be 'no contact' orders,
or 'no abuse' orders. If they
contain a no contact provision,
they give a distance that
the defendant must stay away,
such as 100 yards.
Any violation
of that order can be punished
as a crime, but that material
is not in this section. There
is always controversy over
whether incidental contact
is a violation, such as running
into the person at the grocery
store. Of course, the radical
feminists scream shrilly that
it is, but the issue is somewhat
unclear. The DAs have a firm
policy to prosecute every
violation of an order, no
matter how small. One aside
to the wise - NEVER plead
out. Take the jury trial,
unless you really intentionally
violated the order.
Orders can
also be obtained by parents
on behalf of children, or
make orders restricting access
to the children or their school
records. Recent changes to
the law have tightened this
up, and prohibit records to
be released unless allowed
by a judge. Even then, most
schools treat innocent restraining
order defendants like ax murderers,
and often refuse to let a
caring parent be involved
in a child's education. One
more clear evidence that this
is not about protection, but
family destruction.
Another
undesirable side affect of
restraining orders is an automatic
deprivation of your protected
right to carry arms. The anti-gun
nuts are ebullient over this,
because they can disarm thousands
with ease. One bright spot
is that a federal circuit
court in Texas has shot down
(sorry) that rule, although
it does not apply in this
area, and may never, unless
the Supreme Court makes a
ruling.
If you think
an order may be coming, get
your guns to a friend, pronto,
or the local police will steal
them, and dispose of them.
Restraining Orders are issued
by both Probate and Family
Courts and District Courts.
Further, the standards appear
to be quite different between
1) the initial order obtained
without the other person there,
called an ex parte, or one
party order; 2) the order
obtained when the defendant
is allowed to be there; 3)
Renewal of an existing order,
usually after six months or
a year; and 4) a permanent
order.
Initial ex parte orders
The worst
feature of the restraining
order law is that it allows
a person to go to court and
get an order, without the
other person present. That
means that any lie will do,
since no one is there to rebut
it. As a consequence, without
any input in the matter, a
person can lose their children,
their home, their money, their
guns, and their freedom. This
is crueler tyranny than any
civilized land has ever tolerated,
and approximates the tactics
of one Vladimir Ulyanov, aka
Lenin, during the Bolshevik
Revolution.
Upon issuance,
the police serve the order,
boot the poor sap out of his
house with barely a shirt
on his back, pry his weeping
children from his legs, steal
his guns, and take him to
jail if he isn't terribly
pleased to do as he is told.
What more can be said? Any
liar can get an order by merely
asserting fear. The only hope
is to stop it at the return
hearing.
Return Orders
When the
court issues an ex parte order,
it sets up another hearing
in about two weeks, with notice
to the defendant, where he
can come and argue his case.
This is called a "return"
day.
Many people
do not realize how important
this hearing is. Once it is
held, usually for a pitiful
few minutes, the order is
rigidly set in stone for life.
Courts do not warn defendants
of the vast consequences of
this hearing, and they are
usually conducted quickly,
without the niceties of constitutional
protection in place.
If there
was ever a time to get a lawyer,
this is it. At any cost. Get
one who will fight like your
entire future depends on it,
because it does. If you lose,
you may never see your children
again as long as you live.
Yes, I have a case where six
years have elapsed, and still
no opportunity to have an
actual hearing on the merits
of the lying plaintiff's claim.
Why not
go to the District Attorney,
then, and charge the person
with perjury. Well, they have
covered that angle too, just
like a diabolical plot to
shut off every possible means
of escape. The DAs will almost
never prosecute perjury.
If you are fortunate to get
the judge to vacate the order
at this first hearing, fall
on your knees and thank God.
You and your family have been
spared untold horrors.
Renewal
of Orders
If you are
not so fortunate, and the
judge issues an order, it
will have a renewal date on
it, usually a year later.
The court will refuse to give
you notice, and it will be
easy to forget that date.
This is yet another way that
the deck is stacked against
defendants.
Courts seem to automatically
renew these orders, if the
complainant wants one. You
could have been perfect in
obeying it, and it doesn't
matter. If the person still
wants it, it is issued, without
any further evidence. Another
of the many unconstitutional
anomolies in the restraining
order law.
Permanent Orders
After the proud owner of a
restraining order doesn't
want to go to the trouble
of renewing it year after
year, the court will usually
graciously oblige, and issue
a permanent order. You have
no where to go then. There
is no way out, except to file
an appeal, which is usually
fruitless.
What
About Appeals?
To appeal
a restraining order, one must
file an appeal with the Massachusetts
Appeals Court, in Boston.
It is a very difficult and
time consuming project, ofter
going past the renewal date,
and costing thousands of dollars.
Most people cannot do their
own appeal, thanks to the
always reliably complicated
rules put out by the Pharisees
who run the "justice"
system.
However,
if you do not appeal the INITIAL
order, fuhgetaboutit, as they
say in New York. You basically
lose your right to challenge
the issuance of the order
- forever.
That means that a restraining
order that costs the plaintiff
nothing, issued after a 5
minute hearing, can only be
challenged by a laborious,
year long process of appeal
that usually costs at least
five thousand, if not ten
thousand dollars. Most do
not succeed. You can appeal
subsequent orders, but they
succeed even less frequently.
Justice, where are you?
District Court v. Probate
Court
Restraining
orders are issued by both
District Courts and Probate
and Family Courts. There are
a lot of subtle, tricky, details
that get involved here, particularly
if there is a divorce or paternity
action in the Probate Court,
but the restraining order
is in the District Court.
Most restraining
orders are issued by the District
Court. If a divorce or paternity
follows soon after, the Probate
Court can either take jurisdiction
over the order, or leave it
in District Court. Some Probate
judges will, and some won't.
Further, some District Court
judges don't want to touch
the things once there is an
action in Probate. This leads
to a situation sometimes where
no one wants to mess with
it. Obviously, that bodes
ill for the defendant getting
a fair hearing, if everyone
is irritated about the trouble.
Wherever
your order lands, is where
you must fight it. It doesn't
matter much what court it
is in - the biggest factor
is whether you have a judge
who believes the traditional
concepts of justice and fair
play, or some Commie hack
who got her job by bribing
the governor. I fear there
are far more of the later
than the former.
Now that you have absorbed
the dreadful reality about
these orders, you are in better
position to understand with
a sober mind, that fighting
them is not easy, and never
a sure thing. This material
can help equip you to fight
with a lot more savvy than
most, but the prospects are
still daunting. However, there
is hope, and you should do
all you can to strive against
this evil, while pushing and
praying for a change in the
law itself.
Basic Techniques to Oppose
Restraining Orders
How to Get Started - First,
Get the Needed Information
The first
step you must take to defend
yourself against this deadly
restraining order is to get
a secret application and affidavit
that the plaintiff filed at
the ex parte hearing. The
court will not tell you that
these documents exist, so
you must go to the clerk in
the court where your order
was issued, and ask for two
things: the "application"
for the restraining order
and the "affidavit"
that the complainant filled
out.
The application
will have statements on it
as to why the person wanted
the order. An 'affidavit'
is a statement in writing,
made under oath, of the facts
supporting the application.
Usually, they are both full
of perjury, exaggeration,
and down right lies.
When you go to the court to
get them, give the clerk the
"docket number",
which is the case number on
your order, and ask for the
two documents. The clerk at
the court may give you grief,
but you are entitled to those
documents. They are a public
record, and even if they were
not, you are a party to the
case, so you should get them
on that ground. You will have
to pay a stinking 50 cent
fee per page, but it will
be well worth it.
Strategy Number One - Expose
The Lies in the Application
and Affidavit
The first
critical strategy to use in
every case, without exception,
is to see if there are indeed
lies in the papers which you
got from the court. Even if
not, you have the other strategies
set forth below. However,
this is just about the best
one, because it exposes the
tendency of the complaining
witness to not tell the truth
under oath. That bothers judges
a great deal.
How do you
do this? Look for factual
impossibilities, and objectively
PROVABLE untruths. One affidavit
said that a defendant threatened
to blow up the world. C'mon.
And yes, the order was issued.
Some common
lies involve times, distances,
and places.
For example,
if you are accused of doing
something while you were actually
at work, and you have a time
card to prove it, that is
devastating. Perhaps an allegation
puts you home far sooner than
you could have been there,
and you were somewhere else,
and can prove it with a credit
card receipt for gas.
Phone records
can often disprove false allegations.
Cell phones keep records of
all calls in and out, unlike
residential phones. Even so,
a phone bill showing you were
calling from one place, instead
of the one where you are accused
of being, can absolutely shut
down the whole scheme to accuse
you.
The basis
for many restraining order
complaints are threatening
phone calls. If that is your
situation, then see if your
bills tell a different story.
Email can
also provide verification
of your whereabouts when you
were supposedly abusing the
person.
Neighbors,
friends, co-workers can be
brought in as witnesses, to
state that you were in a place
far away, not abusing. Or,
if the neighbor was standing
there, witnessing the complainant
beating you up, while you
stood silently and didn't
lift a hand, that can also
turn it around.
When the
person complains of injuries,
were there medical records,
or wounds? If it was alleged
to be severe, and no one sought
treatment, that may put the
lie to the allegations.
If the plaintiff
falsely complains that you
were all likkered up or on
drugs, and proceeded to act
violently, you can usually
find people to refute that
allegation. A minister or
a family member, who would
know such things, can help.
If you are in a situation
where no one witnessed the
situation, there were no phone
calls, and you have no alibi,
don't give up. Keep looking
for some objective proof that
will show the person is not
telling the truth. If no such
thing can be found, you should
still bring out the lies at
the hearing, but rely more
heavily on some of the other
strategies below.
Strategy
Number Two - Show How the
Affidavit Fails to Meet the
Legal Standard
This strategy,
along with the one above,
are the two most important
ones. You can rarely win unless
you have strong proof in these
two areas. The other strategies
are important for backing
up your case, but these two
are indispensible.
The argument
about the legal standard is
rarely even made by lawyers,
even though it is absolutely
critical. The judge has be
be shown that you did not
place the plaintiff in fear
of imminent, serious, physical
harm. The plaintiff has to
prove each of these requirements
- imminent, serious, and physical
- and you should try to disprove
each, even though the burden
of proof is on the plaintiff.
This can
be done by showing that the
statements in the documents,
as written, don't even rise
to the level of that standard.
Inspect these two documents
slowly and carefully, phrase
by phrase, and compare the
statements in them to the
law quoted above. Does the
person allege imminent harm?
Serious harm? Physical harm?
If not, you have a line of
attack. Many complaining witnesses
only allege fear or some vague
psychic dread. That does not
meet the standard (despite
the fact that judges give
them out anyway.)
The point is to be very exacting,
and look for evidence on each
of these issues, and make
notes as to questions you
could ask the witness to bring
out any inconsistencies. For
example, if the person alleges
fear that something physical
MAY happen, that is clearly
not 'imminent'. If the person
alleges that you make them
'uncomfortable', that is clearly
not physical. If the person
alleges that you gave her
a pat on the butt, that is
clearly not 'serious'.
Strategy
Number Three - Be Prepared
for Some New Lies
At the hearing,
you will use information and
the documents to expose the
plaintiff's lies, but you
will also likely find that
you have to deal with a new
set of lies at the hearing,
that is, what the plaintiff
may say in addition to the
documents. Once the complainant
finds that you have studied
the documents, and caught
the person in lies, suddenly
(and this almost always happens,
so be ready) the plaintiff
comes up with more information
about what an abuser you are.
So, don't be surprised; be
prepared. Figure out in advance
where the person is likely
to shift ground, and be ready.
This also cuts both ways,
sometimes in your favor. When
a person comes up with new
evidence of your abuse at
a hearing, that were not in
the affidavit, You can then
question why, if these things
were important, or even true,
that they should have been
included on the original papers.
You argue that this is an
attempt to lie to cover up
the previous lies. Anything
that would have helped the
plaintiff's case WOULD HAVE
been in there, and the judge
probably knows it. So, bore
in on it, and ask why this
new lie wasn't in the affidavit.
The Role of the Victim Witness
Advocate or Feminist Lawyer
Note that
each court now has a victim
witness advocate, paid by
your taxes, who helps WOMEN
(only) to prepare these affidavits
to conform with the requirements
of the law. Also, any good
member of the feminist cabal
of lawyers will also have
helped her client to fill
out the paperwork properly.
Commonly, DSS agents also
coerce WOMEN to lie to get
orders, and help them fill
out the paperwork, in order
to pump up their domestic
violence statistics, since
they now have a separate domestic
violence department that must
be fed its compliment of sacrificial
men each day. These are the
forces arrayed against you,
make no mistake.
Often, the WOMEN'S victim
shelter, therapy, a car, money,
freedom, and a whole lot more
are riding on the WOMAN being
willing to get an order, whether
it is built upon a lie or
not. Since more money comes
from more victims, more victims
must be found. No one ever
tallies up the cost to the
poor children who are traumatized
by these false allegations,
and given therapy to learn
how to make proper 'disclosures'
against the batterer.
Figure Out Your Opponent's
Motive, Then Your Strategy
The most
important strategies to use
in opposing an order are the
ones described above. At the
return hearing, you will be
allowed to cross examine the
plaintiff about all these
things. However, there is
another critical strategy
or tool for you to use to
undermine the credibility
of the plaintiff. That is
to show the judge that there
is a plausible motive, other
than fear of harm, that has
motivated the person to seek
an order.
Such an
allegation of an ulterior
motive has to be provable
to really work, not just a
he-said/she-said situation,
or the judge will almost always
believe the one who wants
the order. You need documents,
witness testimony from a best
friend, or some objective
way to prove the bad motive.
Let's look at some of the
wrong motives:
Ulterior
Motive Chart
This is a list of possible
ulterior motives for which
the ‘victim' may have sought
a 209A restraining order against
you:
1. To gain an advantage in
a divorce; (Some divorce lawyers
routinely advise getting one.)
2. To quickly get custody
of your children without a
hearing;
3. To keep you from your children;
4. To stop you from modifying
custody after your child expresses
a desire to live with you.
5. To quickly put you out
of the house without an eviction
or a Probate Court hearing;
6. To allow the complainant
to get a new boy/girlfriend
into the picture, and you
out;
7. To get vengeance;
8. To control or manipulate
you, or get leverage in some
way;
9. The ‘victim' got sucked
in by a victim-witness advocate
who preyed on weakness;
10. To put you in jail;
11. To enjoy watching you
suffer.
12. To get $$$$$$ and help
from DSS or a victim group.
In order
to successfully pursue this
strategy, You must figure
out which of these motives
are behind the push for a
restraining order against
you. Then you must be able
to bring some document or
witness that will prove pretty
strongly that the motive you
allege is the REAL reason
why the person is seeking
the order. This is discussed
more below in the "hearing'
section.
Dealing with ulterior motives
also has another critical
strategic advantage. It allows
you to anticipate what the
person may try to do to you
before it comes about, and
head it off. So, you must.
. .
Think Ahead, Rather Than React
For example,
in Number 4 above, your child
announces that "Hey,
I would like to go live with
Dad", you may decide
to go to the Probate Court
and get a modification of
a divorce order to have the
child stay with you. However,
if you have a conniving ex-spouse,
the ex may go right down to
court for an order, to bypass
your honorable efforts to
do it the right way - and
you are cooked. The order
will be issued, you will be
an abuser, and your planned
modification of custody will
fail.
Based on
that example, you can see
that many of these motives
require some thinking ahead
to be aware of how a manipulator
is going to short circuit
your plans. You must be one
step ahead, not just react.
Because of the politics of
the restraining order law,
once you are accused, you
are guilty.
How will
thinking ahead help? In the
case just cited, you need
to IMMEDIATELY file your modification
- that day - before your 'victim'
can get an order. It is literally
a race to the courthouse.
How about
some of the other issues?
The classic one used by thousands
is Number 1, to get an order
to gain an advantage in a
divorce. What can you do?
You file the divorce. You
be the plaintiff. Then, when
the person tries to get an
order, you can at least point
out that it may be in retaliation.
If you have not filed first,
there is almost no hope.
Motive Number
2, to quickly get the children
without a hearing, often presents
itself in paternity or post-divorce
situations. If the ex wants
to change custody, but doesn't
want to go through the crushing
rigamarole that the uncaring
pharisees have made of the
custody system, then a few
minute restraining order hearing
is just the ticket. You must
watch out for signs of discontent,
and head them off. It is much
easier to diffuse a mad-dog
ex than to fight a restraining
order. Do whatever you must,
but do not let it get to the
point where there is talk
about getting an order.
Numbers
Three and Seven are closely
tied together. Some people
want vengeance, and they will
use the children to get it.
Using the children as pawns
in a restraining order scheme,
whose only motive is vengeance,
is very very very very common.
What can you do? Nothing.
You can only fight fire with
bigger fire, as described
in the section below. A person
bent on vengeance will be
able to manipulate the feminist
or spayed judge, because perjury
is no problem for such a person.
The best liar wins, and it
is usually the one bent on
vengeance. You MUST have another
method of defense, such as
being able to objectively
show the manipulation, or
some other clear cut method.
Motives
5 and 6 are always no fun
for the evictee. Restraining
orders are quick eviction
orders, and they work like
a charm. When the motive is
to move a new partner into
your spot, it is doubly frustrating.
You better have the goods
on the person so that you
can show the ulterior motive,
rather than the lie about
abuse that will come out in
court.
Numbers
8, 10, and 11 are all similar,
in that the person getting
the order is literally having
fun tormenting you. This is
often also mixed with some
of the other motives. Rarely
is one's malice pure, in only
one category. Such manipulators
are so clever that they cover
a lot of bases. When dealing
with vengeance, the first
thing you must do is see if
you can diffuse it - apologize,
try to undo the bad feelings,
anything to stop the onslaught.
If your opponent remains charged
up about hammering you, there
is little you can do in advance,
but you must fight it in court,
and try to show the cruelty
and manipulation by hard,
cold, facts that have no other
interpretation other than
the vengeance motive. However,
you likely know that such
facts often don't matter.
Victimhood is all.
Numbers
9 and 12 frequently occur
with insecure women, who are
easily beguiled by the victim-witness
advocate, or the many women's
shelter people, or some family
hating DSS agent. They will
often offer to help a woman
(only) if she will get a restraining
order. That is the ticket
to getting financial help,
legal help, a place to live,
a car, friends, affirmation
for being a domestic violence
hero, etc.
Number 12
is particularly problematic,
since you are then fighting
an even larger, very well
funded (with your money) enemy,
and you lose the leverage
of financial need on the part
of the other party. The crazed,
maniacal victim groups will
slobber all over a woman to
get her to come to their program,
because it creates statistics
showing how much they are
needed, and provides the justification
for getting even more money
for their nefarious family
destruction games.
For example,
in Franklin County, there
is one such institution called
New England Learning Center
for Women in Transition (NELCWIT),
which has a $1.6 million dollar
a year budget. Their philosophy
is simple: Men are evil abusers;
Women are victims.
When dealing
with this type of Taliban-like
fanatical man-hating coven,
you must use a full quiver
of strategies. They have huge
resources, lots of lawyers,
therapists for the children,
and serious inside connections.
prepare for the fight of your
life. There is a special section
below to deal with this menace.
I can see them smiling at
my acknowledgment of their
power - this is, after all,
about power. They are clearly
winning the battle, since
they have managed to steal
so much taxpayer money, cow
the courts into obedience,
and neuter the lawyers from
saying anything, lest, like
me, they be thought badly
of, and not get any more plum
appointments, or even that
long-coveted judgeship.
In any case,
when you are dealing with
a number 9 or Number 12 situation,
you must be on the lookout
for the motives of whoever
is manipulating the Plaintiff
for their own ends: money,
power, justifying their job,
or the like.
To sum up:
The explanations so far set
forth four basic techniques
that can be used at hearings
to oppose the issuance of
restraining orders (detailed
information about hearings
is presented in another section
below):
1. Expose
the complainant's lies on
the application or affidavit;
2. Show that you did nothing
to place the person in fear
of imminent, or serious, or
physical harm, and that the
paperwork does not comply
with that standard;
3. Be prepared for more oral
lies at the hearing, and have
proof there to refute them.
4. Show proof that the plaintiff
had an ulterior motive for
getting the order that had
nothing to do with fear of
abuse.
If you can
go prepared to a hearing to
present testimony or documents
which prove any, or even better,
ALL, the above things, you
have a chance of winning.
There are other advanced and
subtle techniques, but none
are substitutes for these
four. If you don't do some
combination of these, you
virtually cannot win, no matter
what else you do.
An Actual Example of How to
Apply These Strategies
Here is
an actual Affidavit from a
real case, along with commentary
on how to analyze and apply
these strategies in a real
world situation. The complaining
witness in this case, was
not married to the defendant,
but was pregnant with the
defendant's baby, and simply
wanted to ditch him. The defendant
is a teacher, and would have
been ruined if the order had
been issued.
This woman's affidavit is
reprinted here word-for-word,
except the name is deleted.
After a hearing to consider
whether to issue a restraining
order, the judge reviewed
the affidavit, took testimony,
and did NOT issue the order.
AFFIDAVIT
On
or about September 24, 2001,
the Defendant contacted me
by email at my work place.
At the end of August I called
________ to tell him to stop
calling me, stop bothering
me, that I wanted nothing
to do with him. We had not
been in contact for the prior
2 months at that point. I
had to threaten to call the
police for him to stop. He
would call me up to 7 times
a day. He know [sic] sends
letters up to 3 a day, emails
my home & emails me at
work. He has written that
he will not stop. I have had
to change my locks (he has
a key to my apartment and
has not returned it.
Right now I am in fear of
what might happen next. ________
has only gotten more &
more aggressive as the days
go on. I don't want to wait
until he shows up to find
out. I am afraid to go home
from work in fear that he
may be out there watching.
I have made it clear for him
to leave me alone and this
has seemed to make things
worse. I quite simply don't
know what he will do next.
Analysis
This
affidavit is a good study
for spotting the twisted logic
of the complaining witness,
and applying the principles
and strategies set forth above.
First, we
look for blatant, provable
lies. In this case, (and the
reader would not know this),
there were a bunch of them,
one of which hurts her own
case. More about that in a
minute. The lie was that the
defendant did NOT call her
up 7 times a day. We could
not prove that. However, we
challenged her on it, and
she backed off the untrue
statement.
Second,
as to whether the allegations
meet the legal standard for
issuing an order, that is
where the big points could
be made. First, he had not
been in physical contact for
two months. Second, there
is no allegation that he threatened
her in any of these phone
calls. In fact, she said,
"I don't know what he
will do next." However,
he had not done anything.
It was all innuendo and implication.
Under questioning, she admitted
that he had not come to her
work, or her home, and had
made no threats. She was simply
trying to spin his attempts
to contact her as causing
her fear. However, it did
not work. The calls and emails,
without threats, does not
rise to the level of placing
a person in fear of imminent
serious, physical harm.
Third, we
came prepared for some new
lies, when it became apparent
that the judge was not going
with her. He had indeed sent
a lot of email to her, but
the messages were all calm
and appropriate, and showed
that he was simply trying
to get her to come back to
him. I had them with me, in
case we needed to show the
tone of them to the judge.
As it turned out, she couldn't
come up with any convincing
ones, but we were ready with
the documents if need be.
Lastly,
we had analyzed what the real
motive was hear. She simply
wanted a cheap way to dump
her boyfriend, and keep him
away - it was that simple.
We knew she would then try
to exclude him from the soon-to-be-born
baby's life, and hit him with
an order for child support,
with no strings attached.
In this
case, we did use the motive,
by bringing out that she was
pregnant. Since the judge
already saw that there was
no basis for an order, that
information was not really
crucial. However, if things
were going badly, we would
have used that to buttress
our argument.
This was a fairly simple one.
The hard ones are where they
lie like a rug, and you've
got nothing but your own word
to refute it. Then, the best
liar wins, and it is very
hard to do much about it.
However, in most cases, if
you are mindful of the above
strategies, and you prepare
carefully, you have a reasonable
chance of beating the false
allegations, and stopping
the order from issuing.
Your Day In Court - Standard
Hearing
Introduction
A civil proceeding is like
a dance where all the steps
are very carefully planned
ahead of time, and when you
get there you will feel like
everyone knows the routine
except you. The system really
does play ‘hide the ball',
to the detriment of non-lawyers,
and gives them very little
help. This section will help
you get ready for the hearing
for your restraining order,
keeping in mind that this
is your first time doing it.
Two Kinds of Hearings
There are
two kinds of restraining order
hearings: evidentiary and
non-evidentiary. The kind
of hearing used most often
is a non-evidentiary hearing,
where only the two parties
stand in front of the judge,
and informally present their
case. You may cross examine
the "victim", but
not extensively. The use of
these brief hearings, without
the time to really put on
a case, is one of the main
objections that most people
have to this law, and one
of its many injustices.
This section will explain
how to present a basic restraining
order opposition case, and
the next will explain the
much more difficult evidentiary
hearing. Much of what I present
here can also be used in the
longer form, as well.
What To Do When You Arrive
- Copping an Attitude
On the day
of your hearing, there will
probably be lots of hearings
scheduled. They over-book
just like airlines, hoping
several will be no-shows.
You have to show up for the
‘call of the list' at a certain
time, which is printed on
your order, usually 9:00 A.M.
Go to the clerk's office to
find out which courtroom you
are in, if it is a larger
courthouse with many courtrooms.
Get early
into the courtroom, and scope
out the situation. There are
two tables one for you (the
defendant) and one for the
plaintiff (the complaining
witness.) Look for the witness
stand, because you may have
to make the long journey to
that small scary piece of
real estate. Many hearings
are also done standing in
front of the judge, rather
than on the witness stand.
Find out how it is done in
your court.
There may
be all kinds of unidentified
bureaucrats milling about,
and you have no idea what
role they play. The ones you
need to worry about are the
judge, the courtroom clerk,
who usually sits at a work
station in front of the judge,
and the court officers. The
latter two can be of some
help, if you will communicate
with them. Some will be lifesavers,
so always be polite. Lawyers
often treat them with condescension,
since they are obviously inferior
to the lawyer's exalted status.
Since you don't have that
problem, be considerate, and
ask all the questions possible.
The most
dangerous person in the courtroom,
next to the judge, it the
so-called "victim-witness
advocate", who is usually
a severely demented person
trying to work out their own
tortured past, and their gut-deep
hatred of men by ruining as
many lives as possible. They
rarely understand how destructive
their behavior is. I give
suggestions on how deal with
this species in another section.
In any case,
all this will usually seem
dreadfully mysterious and
spooky, but just ask the clerk
a lot of questions until you
get he/she to be clear with
you. They often adopt the
‘public servant' attitude,
and act like everyone should
know what to do, even when
they know you don't. Stay
patient. NEVER NEVER NEVER
(got that?!!!) NEVER show
an ‘attitude' with a court
clerk. That goes double or
quintuple for the judge.
My clients,
who are understandably frustrated
at the injustice of the system,
often cop an attitude, and
who can blame them. The system
which is supposed to reward
truth usually rewards the
best liar. But don't do it.
Stay cool, by remembering
that this is your future,
and if you show the teensiest
little bit of anger, you are
proving them right that you
are a big angry abusive brute.
Never forget what you are
dealing with - feminists and
(with some exceptions) spayed
men who won't stand up to
them. So, if you are any more
manly than Mr. Rogers or Barney
the Purple Dinosaur, they
will just know that your accuser
is right about what an abuser
you are.
Your hearing
will not have a jury, (another
gross abuse of justice), so
the judge will be the one
to decide whether the order
is issued or not. If the plaintiff
wins, an order is issued.
If you win, the order is not
issued and everyone goes home.
Don't forget to address the
judge as "your honor",
and to ALWAYS stand when addressing
the judge. It doesn't hurt
to stand when talking to the
clerk either.
OK - Here You Go
Once your
case is called, you go up
front, or wherever the court
officer directs you to go.
The maladjusted victim-witness
advocate will go up with the
'victim' for 'support', but
mercifully will not be allowed
to say anything.
The complaining
witness goes first. The judge
will usually ask the person
why an order is needed, and
then you will get to hear
the lullabys, legends, and
lies, as the old Bobby Bare
song goes. The judge is listening
to see if there is any fear
expressed. If the person succeeds
in sounding afraid, many judges
will issue an order.
That is
not the standard, however.
As you know by now, (which
is more than many lawyers),
the plaintiff has the burden
of proving that you placed
the person in fear of imminent,
serious, physical harm. As
we noted repeatedly above,
many plaintiffs do not do
that adequately. However,
if you are not right there
to point that out, you may
still lose.
The next
thing to happen is you will
then have a chance to question
the plaintiff about the testimony,
and about the affidavit. This
is called cross examination,
and this is probably where
you will make it or break
it. This is your most important
moment, and you can win the
case, if you have prepared
as above, keep your wits about
you, and ask questions in
a gentle manner.
Yes, your
mouth is dry as cotton, and
you are nervous as a cat,
but keep your eye on the goal.
Some judges will be pretty
patient with you, and others
will be complete jerks. Before
you can get started, the judge
may ask questions of the complaining
witness if some point is unclear.
That is a good sign, because
that means at least the judge
is listening. If you about
to launch, and the judge interjects,
shut up. Judges are always
allowed to speak over you.
It is OK to ask, "May
I proceed, your honor?"
The key,
as you now know, is to discredit
the affidavit that no one
wanted you to know existed.
The complaining witness probably
does not realize that you
have seen the affidavit. A
surprising number of them
contain really absurd things,
as we have noted earlier.
If you are lucky enough to
have such a gift, launch right
in and start asking questions.
Go through all the strategies
set out above, piece by piece.
BUT, BE GENTLE. If you come
across like horseradish, the
judge will believe you could
be the abuser you are accused
of being.
Your Turn to Testify
After you
have completed your cross
examination, and hopefully
you can feel the case turning
your way a bit, you get an
opportunity to tell your side
of the story. p>Rehearse
your testimony, until you
can explain your story pretty
smoothly. Incorporate the
allegations made against you,
and explain them. However,
don't ONLY be on the defensive.
Have a positive story about
yourself to tell. Talk about
your good reputation in the
community, your service to
others, your good relationship
with your children, etc.
Also, don't
forget that the judge MUST
have a plausible alternative
explanation for why the person
feels fear if you are to have
even a slim chance to win.
Give the judge the alternative,
such as one of the ulterior
motives.
Don't forget to key in on
the actual language of the
law, and assert that you did
nothing to "place the
person in fear of imminent,
serious, physical harm."
Break it down: No imminent
harm - that is, not recent.
No physical harm - not psychic
harm. And no serious harm
- no injuries.
Proving Ulterior Motive
To show
an ulterior motive, you will
have to be very forceful in
accusing your accuser of that
motive, and then provide proof.
Otherwise, it is merely your
word against the other's.
That may mean bringing in
a friend of the defendant
who can say that the defendant
has been going all over town
bragging about wreaking vengeance
on you, or how easy it was
to get the new boyfriend into
your house by getting an order.
In this case, you are going
to have to get the witness
there, and do a witness examination,
which is detailed below.
Your Day In Court - Evidentiary
Hearings
Most of the material in the
section above is applicable
to the more complicated evidentiary
hearings, but is supplemented
by the additional information
below.
Getting Witnesses There
If you determine
that other witnesses beside
yourself are needed to prove
that the complaining witness
was lying or had an ulterior
motive, you need to get them
there, and know what they
are going to say. They don't
even have to be friendly to
help you, as long as you think
that they will tell the truth
under oath. A friend of the
Plaintiff who can explain
the lies or the ulterior motive
right out of the the plaintiff's
own mouth is a very effective
witness.
You must
prepare such a witness in
advance, unless the witness
is so adversarial that he
or she will not talk to you.
It is risky to put such a
witness on the stand, but
it may save your case.
You get
a witness to a trial by a
witness summons, which you
can get from the clerk of
court, and fill in the blanks.
You then must have it served
by a deputy sheriff or constable.
(The difference between them
is that sheriffs work for
the gubmint, and a constable
runs a private business.)
It will cost you about 35
or 40 bucks per witness.
How do you
know when to get a witness
summons? The only time you
can count on not needing a
summons if it is a VERY friendly
witness, who you know would
be there even if meant missing
their own funeral, or at least
wouldn't mind missing reruns
of Gilligan's Island. Otherwise
get a summons. Most people
need them for getting out
of school or work, even if
they are friendly.
You want to summons the witness
at least a week before the
hearing, if possible. If not,
just let it rip, anyway. Get
a summons form from the clerk
of the court, or a notary,
if the clerk gives you grief.
Get a constable to serve it,
plus remind the person a day
or two before the trial. You
will need something called
a "return of service"
from the constable, which
proves the person got the
summons. If the witness was
served, and doesn't show,
you can have him arrested,
if needed.
Examining
a Witness
If you have
summoned a witness to testify
for you, you want to "call"
that witness after you are
done with your own testimony.
You stand up and say, "the
defendant calls Mrs. Gert
Gossipmonger" The clerk
will administer an oath to
tell the truth (never mind
that the plaintiff ignored
it), and the witness is all
yours for a while. What a
feeling of power, and of fear,
too.
You should
have carefully prepared questions
in advance for the witness,
and write them on a legal
pad, in logical order. Some
people can do this with jotted
phrases in an outline as a
reminder. Some need every
word written out in order
to remember. The questions
must all relate to something
the plaintiff testified to,
something in the plaintiff's
affidavit, or something you
said. Of course, the big thing
is to disprove fear, and show
that it is all a sham.
OK, so Gert
Gossipmonger is now on the
stand. What do you do?
First, start
with name and address to establish
her identity, then have her
explain in detail about her
relationship with the plaintiff
- how long she has known the
person, how often she sees
the person, how close the
relationship is, whether her
children play with yours,
etc. The closer the relationship,
the more credible it is, IF
IT IS NOT A RELATIVE. (Only
use your mother, if you have
to. The plaintiff's Mother
is good, though, since it
will be assumed that Mom would
never say anything bad about
her son or daughter.) If you
can get the plaintiff's best
friend, and make sure that
fact is known, then you are
really cooking.
This initial
questioning is critical, and
a lot of people, because they
are nervous, forget to lay
the groundwork. Only then
can you start talking about
the evidence.
Next, you
start asking Gert about the
evidence. However, you must
again lay a foundation for
whatever you ask her. That
means, for example, that you
need to ask her where she
was, and when she was there,
and who was there, if she
is to talk about something
she overheard.
Another
example. What if Gert heard
the defendant talk about getting
you put in jail so the new
boyfriend can move in, or
that she read her diary, which
laid out a whole plan to remove
you from your children's lives
using a restraining order.
Then, you should ask questions
to bring it all out, in living
color. A good analogy to illustrate
this process is to ask questions
as though you were looking
at one frame of a movie at
a time, and ask one question
after another, to make the
frames go by. You want to
cut off a very thin slice
of activity for each question
you ask, and get very specific
answers, not general ones.
If the witness
is nervous, and can only seem
to answer in generalities,
help with more specific and
suggestive questions, like,
"what did you do then?",
or "after that, what
did she say?" Keep the
film moving, frame by frame.
Try to only
ask questions to which you
know the answers. Many lawyers
have been both surprised and
horrified when they asked
a witness a great question
that could win the case for
them, but they did not know
how the witness would answer,
and the witness answered it
wrong for them.
If you get
objections from the other
side, wait for the judge to
rule on the objection. If
the objection is ‘sustained',
your question is not allowed,
and you need to ask it a different
way, or go onto something
else. If the judge overrules
the objection, the witness
may answer.
As soon as you are done with
your questions, pause, think
a minute, and if you can't
think of anything else to
ask, tell the judge, "no
further questions, your honor."
Then, the opponent can cross
examine the witness.
Cross Examination of You
After you
are done testifying, then
you get to endure being ‘cross
examined.' This is where the
defendant or the defendant's
lawyer tries to prove your
evidence is somehow wrong,
or that you have lied, or
should not be believed. If
the defendant cross examines
you, or your other witness,
it may not be too bad. If
Barry Cuda, Esq. steps up
to the stand and opens a can
of whup-ass, you may be in
for quite a fight. Here are
some basic rules when you
are being cross examined:
Rule One:
NEVER be sarcastic or belligerent,
no matter how sarcastic, belligerent,
or even how dumb a question
is. Rather, be very matter
of fact, earnest, and sincere,
and it will often backfire
on your inquisitor. If you
adopt a sarcastic attitude,
the judge will react very
negatively to you, even if
you think you have been very
convincing so far. You can
lose all the progress you
made if you get snitty.
Rule Two:
Only answer the question that
you are asked. Witnesses always
try to explain too much. Think
about the scope of the question,
and only answer that question,
and NO MORE. The best answers
are "yes" or "no".
Give brief explanations if
needed.
Rule Three:
Be honest. If you don't know
the answer, say so, or ask
to explain the question better.
The judge will be an ally
if you do so. That honesty
must extend to answers that
may look bad for you. Keep
your integrity, at all costs.
If you lose it, you lose your
case.
Cross
Examination of Your Opponent
Cross examination
is one of the great traditional
lawyer skills. You need a
lot of practice if you are
going to do it like Perry
Mason. However, for this hearing,
you can bumble along well
enough to win your case.
The purpose
of cross examination is to
catch your opponent in a lie,
to discredit their story,
or to get an admission of
some truth which will help
you. If the defendant did
not testify falsely, either
by stating an untruth, or
omitting a truth, you should
not cross exam; Just let it
go.
Cross examination
works best when you can get
the person to state something
untrue, lead them down the
primrose path to commit to
that untruth, then you pull
out some irrefutable evidence
to show that it was a lie.
This can be a former statement
made under oath, such as the
affidavit the defendant used
to get the restraining order,
or the testimony of a friend,
or something to refute the
statement.
Conclusion
This material
can only HELP you to win.
Frankly, it is a better idea
to get a lawyer than to do
it yourself, as with many
specialized tasks. If you
need further assistance, email
me, and I will try to be of
some help. May God bless your
efforts to obtain justice.
Read Proverbs 21:1, and Psalms
56 though 59. |