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.
Copyright © 2016 RestrainingOrderAbuse.com
TALKING BACK to restraining orders 
Michael Lake
January 13, 2018
Despite Eugene Volokh claim of a prohibition against one to one speech, I haven’t read anything in case law that supports his argument. I think he is also wrong for Lockean arguments for the freedom of speech and even moreso in the [tryals of ]lilburne [and john wharton] case. The SCOTUS case where importunity in public has been prohibited is in the Steel foundries case back in the 1920s (and later in hill v colorado) which has since received negative treatment-and even then the courts approved a time of time manner or place restriction-not a true prior restraint. In the 1920s the Marxist unions were often related to the mob, were frequently violent, and a whole bunch of different union related massacres long since forgotten about. Hence we get the Milkwagon union case which reminds us of the Lockean argument and how speech is used to to gain access to the mind to use reason through, but also list the abuses of the unions such as window smashings, arson, and bombings; The violence that the first amendment was ultimately to protect against was already being carried out by the unions. This was prior to the chaplinki ruling which helped established a categorical view of speech, and rulings likely still were decided upon the clear and present danger test in Whitney v California. Since then milkwagon has been given negative treatment as feminist cite it to try to gag pro-life protesters.
In the cases that follow steel foundries it has been more about the captive audience. And the steel foundries case is on wobbly grounds that going to and from work constitutes a captive audience-something with rare application like the lehman v shaker heights case and often excluded in discourse on the captive audience, and shakey because government started to protect unions protests. In some states you’ll see the legislature also chose to exempt labor unions from their harassment types statutes, as they recognize, ironically, the importance of importunity and doggering as freedom of speech contrary to the steel foundries case-or otherwise are prohibited to issue injunctions under the NLRB. The ability to force an employer to give their workers an extra buck an hour and watch the union jobs move overseas is more important to the legislature than trying to protect our rights, our honor, our reputation, our integrity, our property, and our families. The government could print more money or cut taxes if “money” was their sole concern. Being in a union doesn’t justify special treatment over what is important to justify some sort of speaker based discrimination; the people have been great deceived about what is important in life, and in many cases are deprived of everything life has to offer because the government has exceeded their authority as a sovereign and in violation of the social contract and the laws of nature.
This claim of a prohibition against one to one speech is ether erroneous, or a lazy and incorrect simplification, or a compromise that is as evil as slavery itself. Rights, especially speech, are not something to compromise over-and we have the second amendment, as a final resort, to back up our natural rights against governmental lawlessness as observed in the family courts and in cases where officers get qualified immunity to get away with their murders, beatings, rapes, extortions, kidnappings, and ransoms. Such claims of limitations of one to one speech would be limited to residential residential, or some other captive audience which includes the home. But to categorize it as one to one is preposterous. If someone were to livestream a frisby v shultz type protest, it wouldn’t be one [or in that case many] to one, but one [or many] to many. I never watch the show crank yankers, but I think they done [or advertised] harassing phone calls and broadcasted them on tv-which is another one to many example. Although I am not aware of them facing any legal consequence under any harassment type statute, being one to many wouldn’t protect them if a claim was made.
Face to face words are especially risky. Even calling someone a God Damn racketeer can lead to a conviction under Chaplinski v New York. That is pretty mild compared to how people talk to each other these days-how many kids will tell their friend they are going to kick their *** at a video game or in basketball. But that is the special case of the fighting words doctrine, and again even livestreaming so it would be one to many wouldn’t magically protect the speech. It is unlawful because fightings words are likely going to cause an act of violence; “[words] which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Gooding v Wilson. Even a issuing a true threat isn’t enough to issue an injunction-the plain and adequate remedy is in the criminal law.
And if a person can merely avert their senses to the offending, but otherwise protected speech, they have a duty to do so-not run to the court That is a rule of equity. For so long as they have a plain and adequate remedy they are able to succeed on the merits without the issuance of equity. That remedy may be as simple as averting the eyes to an unwanted mailing or throwing it away (bolger v young’s drug product co), expanded to the internet (Reno v ACLU). And besides, if they were seriously arguing someone was stalking or harassing them, the courts of equity don’t have jurisdiction; the judge has a duty to dismiss the case, for the moving party has a plain and adequate remedy at law but are -and the judge knowingly and willingly allows this when he has a duty to dismiss-violating a defendant’s 7th amendment or article 3 jury trial rights as the case may be. See schoenthal v irving trust. When the government, including a judge, creates a restriction on speech the judge has a duty to ensure that it passes a test of strict scrutiny; that it is narrowly tailored to restrict no more speech than is necessary to achieve some compelling GOVERNMENTAL interest. Injunctions against speech in the family courts are typically standard forms and they never could pass a test of strict scrutiny. Essentially that means any judge who issues them are either knowingly and willingly violating the law, or don’t know what the hell they are doing on the bench. In either case, where there is systematically exceeding their authority both under law and by nature, and the people have an duty to put the judge’s head on a pike to send a message to other judges to stop breaking he law and if necessary to overthrow the judiciary itself.
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Todd Greene
January 13, 2018
It’s speech that can be construed as harassing because it “contacts.” That’s the distinction.
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Michael Lake
January 14, 2018
Pure Speech based contact isn’t enough to abrogate the first amendment. Most states leave it in their statutes that constitutional protected activities are exempt from prosecution to try to salvage their unconstitutional statutes….and they still fail to salvage the statutes.
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A Victim of False Allegations
January 12, 2018
Reblogged this on Falsely Accused.
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