If Restraining Order Cases Are Only about Narrative, How Do You Beat a Liar in Court?

Posted on September 16, 2016



The next to last post stressed the importance of narrative in restraining order cases.

Stories complainants tell pursuant to obtaining a restraining order don’t particularly matter. “I’m afraid” may suffice.

In contrast, defendants’ narratives are critical.

Strategic defense is not about “telling the truth.” It’s about telling the better story. Competing narratives are universally regarded as “he-said/she-said” (so to speak: Restraining orders are not strictly procured by women against men). The only thing that counts is whose story a judge favors when the end-of-the-round bell dings. (Significantly, there’s only one round, and it’s often only a few minutes long.)

Fraudulent claims in restraining order affidavits are commonplace—and what restraining orders do, especially ones whose grounds include false allegations, is inspire those who’ve been accused to register betrayal, indignation, and outrage. Since opportunities to defend may come and go in a few days’ time, those emotions aren’t likely to settle (and may be compounded by many others: fear, bewilderment, uncertainty, vulnerability, etc.).

The urge of defendants will be to stress in court how they’ve been wronged: “It’s really [him or her] who’s the bad guy, Judge.” This urge must be resisted.

The judge couldn’t care any less if s/he were paid to—and s/he is paid to.

Defendants need to defuse whatever has been alleged against them. Merely relating a meandering history (or “history”) of mistreatment can work great for plaintiffs; it does nothing for defendants.

This may seem unfair. It is, and that doesn’t matter—and that’s what a defendant must focus on: what matters.

Sometimes what matters is the law. For example, many recent posts here concern allegations that writing about someone online is “harassment” or “stalking.” One-to-many speech (online or otherwise) is neither, and it’s protected by the First Amendment. To qualify as “harassment” or “stalking,” someone has to contact someone else, repeatedly, after being told not to. Contact must be one-to-one or through a middleman. No confrontation, emails, texts, phone calls, letters, or relayed messages means no contact, and that means no grounds for court interference. Cases in which a constitutional defense is strictly applicable, however, are rare.

(The author of this post is in such a case right now with a woman who he has been told has been diagnosed with a mental illness. The law is clear: The woman has admitted I’ve had no contact with her in years; therefore there were no grounds to authorize an injunction. Making the law clear to a municipal trial judge is a different story. Do I start by playing a voicemailU that this woman, who claims I’ve stalked her since I met her in 2005, left me in 2012, in which she urges me to call her? Maybe. That kind of evidence makes a good first impression. It says—without saying it—that she’s lying. It upsets her narrative. Do I start by saying, “She’s crazy”? No. That’s aggressive and makes a poor impression. It would only get the judge’s hackles up.)

What makes a good narrative? First, follow the creative writer’s maxim: Show, don’t tell. Sometimes defendants have contradictory evidence to present; sometimes there is none. If there is evidence, it must be framed with care (and defendants are recommended to read it aloud in court and not to depend upon a judge to “get it.”) Legal method proceeds from evidence to conclusion. Defendants shouldn’t start with the conclusion, for example, “He’s lying.” They should present a story that gives a convincing impression. Then they can say, “He’s lying.” Attorney Gregory Hession, a specialist in restraining order defense, would call this highlighting plaintiffs’ “ulterior motives” (their real reasons) for petitioning a restraining order. These may include malice, for example, or cover-up.

Defendants shouldn’t rile the judge. What riles a judge is defending by accusing the other guy. Defendants’ narratives should do that. Judges actually think it’s incomprehensible that defendants should be irate, even defendants who’ve been lied about. Expressions of anger by defendants inspire theirs. Misrepresented defendants must seem misrepresented. (No normal human reactions should be expected from judges, furthermore, and normal human reactions from judges should not be relied upon. Judges will often be very civil even as they insert the knife. Defendants should never be lulled into thinking judges are on their side until after the gavel falls in their favor.)

Narratives must be organized, coherent, and taut: no jangly pockets to upset the seams.

Obviously, they should be rehearsed.

Narratives, too, shouldn’t be one-sided. Defendants should cross-examine (ask questions of) their accusers with the aim of tripping them up, and they should anticipate accusers’ answers. If an accuser has made contradictory claims to the police, for example, a way to obviate an outright denial is to phrase a question like this: “Would it surprise you to know that Officer [A] recorded that you said [X] on [date], and Officer [B] recorded that you said [Y] on [later/earlier date]?” (Any defendant who has been accused to the police should obtain the complete file and scour it. It’s there for the asking.) The objective is not to show that plaintiffs are capable of lying but that they have lied about something material (that is, about something that would tend to influence the judge’s understanding and verdict). Exposed details or contradictions should be relevant and significant details or contradictions.

Defendants with documents that corroborate their narratives and contradict their accusers’ should bring them to court in triplicate. Trial judges are seldom sage; they’re just people doing a job. Anything that appears to be “evidence” should be exploited.

Restraining order trials are storytelling competitions. Whether or how defendants embellish the facts is a question for their consciences. In a criminal trial, a defense attorney will flatly deny anything that can’t be proved by the plaintiff, even if the attorney knows the denial isn’t “the truth.” The attorney’s job is to exculpate his or her client: “Can you prove my client even knows you?”

Being storytelling competitions, restraining order trials are not won by telling “truer” stories. They’re won by telling stories that are more appealing to the listener.

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