Addressing the Judge: What to Expect at a Restraining Order Appeals Hearing…and What Not To

Posted on May 26, 2013 by


Judges famously tend to be an inscrutable lot.

Defendants who expect a judge to leap from the bench with indignation upon being shown evidence of lies by the plaintiff are bound to be disappointed.

Far more likely the judge will evince bemused or stoic indifference. You may even wonder if s/he registered what you said at all.

Don’t be nonplussed. This is how s/he’s supposed to act. Keep on trucking until s/he interrupts or redirects your presentation.

What you want to focus on is triage. Triage means presenting the points of your defense in order of importance (triage is a wartime medical term that means privileging patients with the best chance of recovery over those who are sure goners). What will positively doom you in a hearing is rambling, speaking off the point, or carefully qualifying everything to the extent that the judge completely misses what you’re driving at.

Don’t waffle or be mealymouthed.

Bullets. Present your case in brief staccato bursts. Everything should be short and sweet (so to speak). Time is always a limited commodity, and a restraining order hearing may be granted no more than a handful of minutes. People—and judges are people like anyone else—tend to remember best what they hear first and last and/or what’s stated to them emphatically.

Like bullets, everything you say should be pointed and intended to inflict damage. Pare down everything you want to say to its most elemental, and state facts in the light that most favorably represents you.

And absolutely speak to your conduct (or the conduct you’ve been accused of, anyway), because that’s what’s being ruled upon. In other words, don’t try to defend your own actions (or “actions”) by merely speaking to misconduct by the plaintiff like a little kid would: “She started it!” or “She’s a liar!”

It’s often if not usually the case that restraining order plaintiffs and defendants are lovers, spouses or ex-spouses, friends, or family members: people, in other words, who are or have been close. There’s a temptation, therefore, for defendants to explain the context of their statements or even to show sympathy or generosity toward their accusers. There’s also, of course, a tendency to feel betrayed, ashamed at being exposed to public censure, or humiliated by allegations that may be beastly misrepresentations of the truth.

Don’t yield to these impulses and emotions.

What you learn after you’ve been put through this ringer is that your opponent is going to show you no mercy and may very well lie heinously to ensure that you’re “defeated.” Even people you considered friends may turn out to be rats and side with your accuser and lie for him or her.

Combat analogies are very aptly applied to this process: the courtroom is an arena. “Bloodsport” isn’t a bad metaphor.

The judge is there to ensure that no one actually brawls, but his or her role otherwise is less as an arbiter or referee than as a spectator (who, like a Roman emperor at the Colosseum, gives a thumbs up or down when the dust settles).

Your goal isn’t to appeal to his or her sympathies; it’s to make a decisive impression. The judge’s impression will be based on your manner, composure, confidence, directness, and the cogency of your presentation, that is, how well it sticks together and how well it conveys your points (and, of course, how good those points are). The standard in civil cases is a “preponderance of evidence.” You want your evidence and testimony to have more heft and credibility than the plaintiff’s.

If the plaintiff’s allegations are a fraud, start by saying, “The plaintiff’s allegations, Judge, are a fraud.” Triage. Get the big points in—the general—then move to the specifics in short order. Directly address and contradict the allegations you can. The more evidence (“proof”) you can support your points with the better.

What attorneys do is this: they present their clients’ cases in the light most favorable to them (and most damning to their opponents), not balking at distorting the truth or outright lying, and ignore everything material that they can’t spin doctor.

I can’t advocate lying. Otherwise, though, thinking like an attorney isn’t a bad idea.

Translated into practical terms, this means a shove is an “assault,” a shout is “verbal abuse,” a demand is “harassment,” something that happened twice is “serial misconduct,” a touch is a “grope,” etc.: cold, cruel, categorical, and coarse.

Male judges have a chivalrous bent—and most judges are male—which is among the reasons why so many restraining orders sought by women against men are approved even on evidence or testimony that’s tenuous at best. If you’re a man defending yourself against a woman, bear this in mind. A woman can spout the most incendiary evil she can muster, and it’s not going to be held against her, because she’s a “girl.” Whatever a man counter-alleges against a woman needs to be presented reasonably and decently. He should choose his words carefully, avoid vigorous gestures, and keep cool.

If you’re a man defending yourself against a woman, you start with your hands tied and two strikes against you. That’s in the nature of this travesty of justice.

Bat with your head. There’s no surviving this process without some fractures.

Copyright © 2013

[Unrepresented restraining order defendants, incidentally, should pour everything they’ve got into their appeals hearings, because the rules and expectations that obtain in Superior Court—should the case progress up the judicial ladder—are much more exacting and only capably negotiated by veteran attorneys (or shysters, a word that means unethical lawyers and fittingly derives from the German for “defecators,” because much of what comes out of their mouths is feces).]