Abuse of Process / Malicious Prosecution

Sister torts, either of which may be alleged in a complaint (lawsuit) against a defendant who employed a court process for a purpose other than that for which it was intended (that is, a malicious one). See Tort below.

Affidavit

A sworn, written statement to the court. An affidavit is the written equivalent of courtroom testimony given under oath. Defendants in restraining order cases or plaintiffs in lawsuits may submit character or witness affidavits from third parties (friends or associates) to corroborate their testimony to the court. Such affidavits are simply written statements that have been notarized, that is, witnessed by a notary public. (An example affidavit for your state and the particular court your case is being tried in can be found online and used as a template.)

Appeals Hearing

An audience with a judge either assigned to restraining order defendants or granted to them upon request. In jurisdictions that require defendants to apply for a hearing, the window for doing so is brief, so defendants must act promptly.

Black’s Law Dictionary

The standard reference cited in matters brought before the court.

Caption

The heading of a legal document (complaint, summons, motion, etc.) identifying the case and parties involved.

Civil Rights

The basic privileges guaranteed to citizens under state and federal constitutions (among them the right to fair treatment under the law).

Code of Judicial Conduct

The canons or guiding principles to which a judge is ethically bound to conform. Each state has its own code based on one formulated by the American Bar Association. The text of each state’s code should be available on the Internet.

Commission on Judicial Conduct

A state panel of judicial overseers that investigates complaints made about judges’ conduct (including obvious bias, abusive treatment, or other unethical behavior in the courtroom). See Code of Judicial Conduct above.

Complaint

This word is equivalent to lawsuit and refers to the document in which the plaintiff in a suit makes and substantiates his or her allegations against the defendant. The complaint contains a narrative history of relevant events, an inventory of alleged torts (civil wrongs), a prayer for relief (a petition to the court for redress of those wrongs), and exhibits (supporting documents such as bills, witness or character affidavits, emails/letters/texts, medical or telephone records, and/or photographs).

Defamation of Character

A tort alleging an act by the defendant in a lawsuit that publicly maligned or traduced the good name of the plaintiff. Proof of defamation requires demonstrating to the court that a defendant publicly made false statements of fact about the plaintiff that damaged his or her respectability. The adjective form is defamatory. Defamation in the form of speech is also called slander; in writing, libel. See Tort below.

Defendant

The person whose conduct is complained of to the court by a plaintiff. In a restraining order case, the defendant is the recipient of the court’s order. In a lawsuit, the defendant is the party the suit is brought against. Contrast Plaintiff below.

Due Process

The constitutional expectation of fair and equitable treatment under the law. See Civil Rights above.

Ex Parte

A Latin phrase meaning “on or from one side only.” Restraining orders are issued ex parte, that is, based solely on testimony and evidence provided by their plaintiffs (see Plaintiff below). By definition, an ex parte ruling is biased.

Exhibit

An item of evidence submitted to a judge in a hearing or appended to a complaint (lawsuit). Examples include photographs, bills, emails, telephone records, text messages, and medical records.

Expungement

The removal of a case (such as a restraining order) from a defendant’s public record.

False Light

A tort alleging that the defendant in a lawsuit misrepresented the plaintiff’s conduct for a malicious purpose. See Tort below.

False Reporting

Filing a misleading report with the police, that is, one that contains false statements of fact. False reporting is a criminal misdemeanor. See Misdemeanor below.

Felony

A crime deemed egregious enough to merit a term of imprisonment. Perjury (see below)—misconduct that is often complained of by restraining order defendants—is a felony crime.

Fraud

A tort alleging that the defendant in a lawsuit knowingly made false or misleading statements that led their target or targets (the plaintiff, the police, and/or the court) to act in error or to his/her/their detriment. See Tort below.

Intentional Infliction of Emotional Distress

A tort alleging that the defendant in a lawsuit willfully engaged in a pattern of egregious misconduct that caused the plaintiff extreme distress and/or injury. See Tort below.

Lawsuit

See Complaint above.

Misdemeanor

A misdemeanor, which may be civil or criminal, is literally a misdeed. A restraining order is a civil misdemeanor. A criminal misdemeanor (see False Reporting above) is a crime less serious than a felony (see Felony above).

Motion for Continuance

A motion to the court requesting that a defendant be granted more time to prepare. A restraining order defendant may file a motion for continuance (postponement, extension) by calling or visiting the courthouse. A judge will rule on the motion, and the defendant will be notified of his or her decision. Defendants have nothing to lose by asking that an appeals hearing be delayed—and much to gain. Obtaining counsel (that is, the services of an attorney), which is highly recommended, can be very difficult within the brief period of time between a defendant’s being served with a restraining order and his or her appeals date, as can be obtaining affidavits from witnesses and assembling evidence. These grounds for a motion for continuance are very valid ones.

Nunc Pro Tunc Motion

A motion to the court to vacate an earlier action or ruling. Nunc pro tunc is a Latin phrase meaning “now for then.” A nunc pro tunc motion may be filed after the expiration of a restraining order to vacate it. Such a motion, however, requires the cooperation of the plaintiff. See Vacation below.

Perjury

False or contradictory statement(s) of material fact given in court or made in a sworn statement such as an affidavit or restraining order application (a material fact is one that would tend to influence a judge’s ruling). The commission of perjury is a felony crime. See Felony above.

Plaintiff

The person who petitions or complains to the court. A restraining order may have a single plaintiff only (though minors or those deemed unfit to represent themselves may be represented by others). Lawsuits, however, may have multiple plaintiffs. Contrast Defendant above.

Prayer for Relief

The concluding portion of the body of a lawsuit in which the plaintiff requests relief, damages, and/or other forms of redress of injury from the court.

Pro Se

The title applied to an individual who represents him- or herself in a court proceeding (for example, an appeal or lawsuit). Example: “John Doe, Pro Se.”

Quash

If a restraining order defendant successfully appeals the injunction against him or her, it is quashed, that is, voided. See also Vacation below.

Restraining Order

A form of civil injunction that places limitations on the actions of a defendant in respect to the order’s plaintiff. A restraining order defendant is forbidden to approach or come within a certain distance of the plaintiff and may be forbidden various other forms of contact, also, such as that by telephone, mail, or email. Certain locations may also be proscribed. Limitations imposed upon the actions of the defendant will be specified on the restraining order s/he is served with. Restraining orders go by many titles, including orders of protection, injunctions against harassment, and peace orders. Such an order may be referred to by an attorney as a “court order” or an “order of the court,” or as “the court’s order.” A restraining order represents a civil misdemeanor. See Misdemeanor above.

Service

The necessary confirmation that the defendant in a legal action has been made aware of that action and its directives. A restraining order is not effective until it has been served on its defendant. Lawsuits (complaints) must likewise be served for them to go forward. Service of a restraining order is typically performed by a constable or other law officer. Service of a lawsuit may be performed by certified letter, a process server, or by a law officer (for example, a deputy sheriff).

Statute of Limitation

The finite period of time during which a crime or tort may be litigated in court. Victims of fraudulent restraining orders who wish to sue plaintiffs for damages must do so within the time constraints of individual torts’ statutes of limitation (within 12 months, for example, for defamation of character).

Summons

A directive to the defendant informing him or her that a lawsuit has been filed against him or her and requesting that s/he respond.

The Court or This Court

Either of these phrases is used in lieu of “judge” in a courtroom or in the body of a lawsuit. The court refers to the court (really a single judge) hearing a case. Example: “Plaintiff submits to this court that Defendant did knowingly and intentionally commit fraud.”

Third-Party Contact or Third-Party Communication

Contact/communication with the plaintiff in a restraining order case by its defendant through a third party (that is, a person not involved). An example of third-party contact (which may be forbidden to a restraining order defendant) would be the defendant’s asking a mutual friend to convey a message to the plaintiff (whom the defendant is enjoined by the court’s order not to communicate with directly). Defendants who have been forbidden to engage in third-party contact may not ask another to speak to the plaintiff for them.

Tort

A civil wrong alleged in a complaint (lawsuit). Torts applicable in lawsuits for the malicious abuse of a restraining order may include abuse of process/malicious prosecution, fraud, defamation of character, false light, and/or intentional infliction of emotional distress. Plaintiffs should consult a book of pleadings at a local law library for other torts that may apply to the circumstances of their cases.

Vacation

The voiding/termination of a restraining order or other judicial decree or process.

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