“Do I need a lawyer?” is a question that commonly brings restraining order defendants to this blog and other sites like it.
No one wants to shell out thousands for an attorney to bat away allegations made on a restraining order that may have been concocted in a fit of pique by an embittered friend, a jealous ex, or a crazy neighbor. Too, it’s often the case that allegations leveled by restraining order plaintiffs are of a kind no one wants to advertise to strangers, let alone friends and family. Just the implications of the phrase restraining order are enough to make most people recoil.
I know someone who applied to the mayor for a character reference after she was falsely accused of domestic violence—on a restraining order—by a married friend she’d briefly renewed an association with. Sounds insane, right? The judge ultimately tossed the case after observing that the allegation wasn’t even applicable, because the plaintiff and the defendant weren’t in a domestic relationship. But that didn’t cause a judge any hesitation in approving the restraining order in the first place, and imagine what it cost this woman emotionally to have to explain the matter and ask for help. Imagine further if she had been a he, and you can appreciate the horror of fighting these kinds of allegations, which are validated by judges on a modicum of evidence, if any, and which neither cost nor risk their plaintiffs anything to make. Restraining orders are cheap or free to get, and no one is ever actually jailed for lying to get them.
I did a quick scan today of top Google returns for the term “lying to the court.” Most commenters weighed in that lying = perjury, which is a crime, so beware. It’s true that lying about a material fact in court (a fact, that is, that’s likely to influence a judge’s opinion) is a statutory crime. A felony, no less. Equally true, though, and much more pertinent is that lying isn’t prosecuted. So there’s nothing really for a fraudulent plaintiff to have to be wary of except maybe a little embarrassment if actually caught in a lie (and most plaintiffs, of course, aren’t aware that lying to a judge is a crime, so it’s not even on their minds).
Someone who’s morally bankrupt enough to lie to a judge in the first place isn’t going to hesitate because of the risk of shame if s/he’s caught. Shame is an emotion to which s/he’s obviously immune, anyway.
In the administration of restraining orders, the ideal of justice isn’t given priority. Restraining orders are issued ex parte, which means they’re approved without the judge’s having the faintest idea who s/he’s issuing a restraining order against. The only person the judge hears from is the plaintiff, and hearings to obtain restraining orders are typically 10-minute affairs.
Talk show host David Letterman was famously issued a restraining order petitioned by a stranger who lived in another part of the country. The judge didn’t think twice about rubber-stamping the thing and moving on to the next applicant.
Defendants don’t need attorneys; it’s perfectly lawful for them to defend themselves in an appeals hearing. Whether defendants need attorneys to better their chances of a favorable verdict is a different question entirely. David Letterman, it should go without saying, had a team of them. And it should come as no surprise that they shredded the restraining order to confetti.
A cynical answer to the question of whether defendants need attorneys to improve their odds of beating a bum rap is that defendants who can afford attorneys are perceived as deserving greater consideration than ones who can’t (or who don’t know enough to seek counsel—or who are hoping they can just quietly make the whole thing go away on their own). This answer doesn’t jibe with the judicial canon that everyone should be treated the same, but that doesn’t mean it isn’t true. Because restraining orders are issued ex parte, the idea that fairness obtains at any stage of the process is clearly dubious.
Truth and falsehood in judicial proceedings are, besides, very relative things. For truth to even exercise its power to dispel lies depends on how effectively a defendant can make it plain to the judge. As straightforward as a naïve defendant might believe this to be, it’s not as simple as stating facts that contradict fraudulent testimony or producing some evidence that’s expected to be conclusive. The judge might decide that that evidence is irrelevant or that the lie it exposes is immaterial to the case. Or s/he might decide s/he doesn’t like the defendant period. Can you lose a case because the judge doesn’t like you or likes the plaintiff better? Sure. Does that have anything to do with the truth of the plaintiff’s allegations against you? No.
Representation by an attorney isn’t a guarantee of success. The mere presence of one, though, will give you a degree of credibility you wouldn’t otherwise have. An attorney with courtroom experience, furthermore, has presentational skills that you lack. Restraining order appeals hearings are very brief, judges tend to be skeptical of defendants (particularly men), and even a self-styled Perry Mason may find him- or herself stammering and squirming once s/he’s in the hot seat under the glare of the judge.
There’s the possibility, too, that the plaintiff will have an attorney, and attorneys aren’t known either for playing fair or for showing mercy to their opponents. Some attorneys—gasp—are even professional liars. Several respondents to this blog, in fact, have had false restraining orders petitioned against them by attorneys who were ex-lovers or -spouses or—in one case—a parent. The restraining order process, more than any other, brings out the worst in human nature.
If you’re the defendant in a restraining order case, especially one grounded on fraud, get an attorney.
Now.
Copyright © 2013 RestrainingOrderAbuse.com
Anonymous
June 9, 2013
WIth a final comment for this blog entry that you’ve written, I think if a person plans on using an attorney, the respondent needs to be very sure to tell the truth to the attorney. The respondent can lie, the respondent can lie to the attorney, but the attorney is not supposed to (by law) lie for the respondent. It’s up to the respondent to tell truths to the attorney. However, lying or truth-speaking, civil discovery, I believe, is what needs to be gravely considered throughout argumentation. The thing, however, about restraining orders, from my experience, is that petitioners fail to undergo civil discovery. If the respondent lies, the petitioner could ask for a re-hearing and attempt to undergo civil discovery, but allowing a re-hearing and/or civil discovery would be up to the discretion of the judge. The respondent could also make a motion to deny the re-hearing.
I think from what I’ve studied in law, there can definitely be sophistry, lies, and deceit.
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Moderator
June 9, 2013
Absolutely. Restraining order allegations are basically taken on faith. Restraining orders may be refused because of insufficient claims like “I, um, think it was him” or “I just want him to stop making mean faces at me!” Applicants aren’t refused by judges who say, “I don’t believe you” or “It sounds like you’re lying.” It doesn’t happen. From what I’ve seen and heard, furthermore, most judges really don’t probe plaintiffs’ motives at all.
Regarding attorneys, I’ve known some who couldn’t lie. I grew up with a woman who practiced immigration law for years and now teaches. Lying would cause her to be racked with guilt and make her question her suitability as a role model for her daughter, etc.
I’ve known other lawyers who lie freely and easily and encourage their clients to do the same. I even think these sorts of scumbags are able to recognize each other. By scent, maybe.
There’s a reason, of course, that we have lawyer jokes:
Q. How can you tell a lawyer is lying?
A. Other lawyers look interested.
Q. What do honest lawyers and UFOs have in common?
A. You always hear about them, but you never see them.
Q. What’s the difference between a lawyer and a vulture?
A. Lawyers accumulate frequent flyer points.
Q. If you drop a snake and an attorney off the Empire State Building, which one hits first?
A. Who cares?
We want to believe there are consequences to lying to judges, but there aren’t, really. I’ve never noticed judges to even care. Sanctions and censures are really only directed at attorneys who engage in big money frauds.
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Anonymous
June 9, 2013
Another thing about word smithing is that it’s not necessarily perjury if the respondent quotes the act word for word and the act did not occur. That is not perjury. It’s deceptive, but it’s not perjury. Perjury comes about when the petitioner much better describes what the act truly was, such as in a general way saying what particular crime/tort occurred rather than describing motions of people’s bodies, expression of dialogue, etc..
If the ex-girlfriend said, “He assaulted me, your honor,” rather than arguing about what the hand looked like and its motions, then it would get into a realm of argumentation about the elements of assault, motives, intent, and how each party perceived the alleged assault.
Getting to the legal terminology of what occurred makes it more difficult to argue against something, but then people would have to argue about the elements of the crime/tort. As such, being a sophist in such an area would become much more difficult, as there is little space for a deceiver to use wordsmithing. I reason, however, that uneducated people would be susceptible to being screwed over by a respondent who plans to use sophistry without an attorney. The attorney delimits the respondent from being a court jester.
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Anonymous
June 9, 2013
I think what I’m saying with actus reus is that it can come down to wordsmithing. However, if the petitioner is giving an inaccurate detail of the acts that occurred, the respondent can deny the acts word for word, even quoting them.
For instance, if this is said in a petition:
“My ex-boyfriend raised his fist to my face while we were arguing.”
However, the real situation was that the ex-boyfriend raised an open, uncurled hand to the ex-girlfriend, he can say in a motion to vacate and dismiss with prejudice or in court, “The petitioner states that I raised my first to her face while we were arguing. The act did not occur. As such, no intent was held for the allegation of assault.”
If the ex-girlfriend changes her story in court and say she meant that his fist was open and uncurled, the respondent can object and say to the judge that she is changing her story and making a false allegation of assault and request that the assault allegation be dismissed.
It’s a dirty tactic. And there is some wordsmithing involved. One of the things people say about argumentation is that the more argumentation occurs, the closer people get to the truth. The truth in this situation would be that the boyfriend gave the ex-girlfriend the impression he was going to slap her.
So, this goes into the realm of truth-seeking vs. sophistry. I doubt that an attorney is going to help a client conduct sophistry in the courtroom. However, sophistry also relies on the respondent’s ability to conceal and prevent evidence from being found through a civil discovery process. Whereby a civil discovery process never does occur and the full court hearing comes about, the respondent can easily engage in sophistry in order to take down the petitioner.
However, sophistry or truth, I think the real main goal in the end is for the violence to stop. So, a sophist (respondent) needs to stop any abuses toward the petitioner. One who is trained in philosophy and wisdom should know better than to be so unethical as to trick and decieve only to enable one’s self to continue harming others. That would be quickly found out soon enough if another restraining order or criminal proceeding came about.
The gist of what I’m saying is that a respondent without an attorney can get away with more stuff than with an attorney who knows the complete truth of the situation, as the attorney/lawyer is bound by a code of ethics.
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Anonymous
June 9, 2013
I think a respondent should get an attorney if he or she plans on filing a restraining order against the petitioner. It will help when attempting to describe the emotional and physical abuses the petitioner has caused the respondent. I think it’s important to realize that an attorney can speed up the process. However, speeding up the process costs money. I think a downside to an attorney is sometimes the attorney knows much more. I’ve spent a fair past few months studying law, and I’ve caught up to speed on criminal and civil law. One of the things, however, that I think an attorney has knowledge of that I would not have active knowledge is past cases, whereby some past cases may have had similar allegations, so the attorney would know how to better defend and represent the client: Attorneys would have a better knowledge of case law.
I think, however, most of criminal and civil law can be boiled down to mens rea, actus reus, and whether or not there is a defense. Mens rea boils down to basic and specific intent. And with that knowledge, an individual can attempt to apply it to various kinds of domestic violence laws, such as harassment, assault, and domestic battery. And then there is understanding intent and the intent to committ the act. And even more interesting is things, such as, the intent to harass. There is sometimes a gray zone where a person can claim that he or she did not hold the intent to harass, thus harassment did not occur. Since the burden of proof is on the plaintiff, the plaintiff can attempt to argue the respondent’s intent, but the petitioner/plaintiff cannot prove it without the respondent saying so.
Even more interesting, as I’ve learned, is when a person makes an allegation of stalking that has holes in it. A person can falsely claim an allegation of stalking, despite acts that could be considered stalking having occurred, just because the person is mad and angry at the respondent and wants to retaliate toward the respondent rather than the petitioner truly holding fear of abuse or wanting to prevent abuse through a restraining order: The petitioner held an ulterior motive.
I think armed with some basic knowledge of domestic violence laws, mens rea, intent, and an understanding of actus reus, a person can easily and quickly work with an attorney in order to prepare a better defense.
I think what’s nifty is a good understanding of actus reus. If the petitioner alleges that something occurred, and the wording in the petition is an inaccurate description of events, you can claim that the act did not occur, thus there was no intent. No actus reus and thus no mens rea. However, it could be bickered in court what really happened. However, as an attorney once told me to focus on what is in the petition. Anything else you could claim never happened or is a false allegation (although, this may come down to playing dirty).
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Anonymous
June 1, 2013
If a person plans to tell the whole truth, there shouldn’t be a problem. However, judges have this issue of immunity, whereby they are not obligated to look into the mental state of a defendant. As such, the judge may simply take the allegations, determine whether or not the law has been broken, and either grant or deny relief. Furthermore, in my knowledge of attorneys, many are obligated to not help you lie and cheat the system. However, in my study of law, there are definitely ways to cheat the courts, which generally comes from lying.
Sure, lying can help you get out of a restraining order case, especially if you have no problem leaving the petitioner/plaintiff alone. However, in such a case, a person would need to be able to disarm all if not most of the allegations to make the severity of the restraining order case seem miniscule. Nonetheless, I believe many judges take little effort to consider the relationship of the two individuals, focus more on the legality of the allegations, and determine whether or not if the laws that have been broken should allow the individual to be granted a restraining order.
Time and time again, however, as I’ve learned from various domestic violence cases… No witness = no problem. If there was not someone there to witness the act, you can develop an alibi, and you can have the allegations defeated. As with the civil discovery process, if that person has not been able to identify you and can prove your identity as the individual who made particular claims, you could tell the honor that the information is fabricated. With that, however, you’d have to develop a story as to why all of the hearing is false and malicious, which becomes a large, large problem: You would have to be great at argumentation and deception. I do not believe an attorney is going to be so willing to help an individual accomplish these goals.
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Moderator
June 1, 2013
Lying to the court by attorneys is an ethical violation, just as a plaintiff’s lying to the court is perjury. Punishment of neither act of fraud is pursued vigorously, though, and usually not at all.
Lawyers get in trouble if there’s big money fraud, and they lie to cover it up and that kind of thing.
As far as domestic violence goes, there doesn’t actually have to be any domestic violence for an allegation to be preserved on public record, and the allegation doesn’t have to be proven for a restraining order to be upheld.
A criminal allegation of violence must be substantiated. A civil allegation of violence doesn’t have to be. Restraining orders aren’t based on evidence or corroboration of allegations by witnesses; they’re based on persuasiveness (whether of facts or of falsehoods).
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