WomensLaw serves and supports all survivors, no matter their sex or gender.

Legal Information

Starting the Court Case

Should I gather evidence before filing my court case?

If it is safe to do so, then you should be gathering evidence and deciding which witnesses could help you to prove your cause of action. You should keep track of any witnesses by writing down their names, their contact information, and what they know about your case. Make sure to photograph any injuries you suffered or any damage to your property. If you are the one who is filing the court case (the plaintiff or petitioner), then you are the one who will have to prove that what you are alleging in your petition/complaint actually happened.

One thing that you can do to better prepare your case for stalking or harassment is to keep a log (or a record) of the details of each incident as the incidents occur. You can make a list of the date and time of each incident, what the abuser did or said, what actions if any you took, what witnesses or evidence you have, etc. This way, if you have to prove the pattern of events in court, you will have the information ready to give to the police or judge. You can also save any voicemails, emails, or text messages that are sent as further proof of the stalking/harassing behavior - as well as taking screenshots of any posts made on social media to preserve them in case the person who posts them later deletes them. Here you can see safety tips for stalking or harassment victims and a sample stalking/harassment log.

What kind of evidence should I have for my case?

Each state has its own laws about what evidence you can use in court. You may need to get certified copies of the documents or you may only be able to enter information from certain parts of the document. If you are trying to get reports from police, hospitals, doctors, etc., you may have to get a subpoena signed by the judge to get those documents. Your state may require that the documents are sent directly to the courthouse instead of to you. Due to complex rules of evidence, it may be hard to figure all of this out on your own – this is where having a consultation with a lawyer can be especially helpful.

In most states, evidence can include:

  • testimony in court, from you or from your witnesses;
  • medical reports of injuries from the abuse;
  • police reports for when you or a witness called the police;
  • pictures of your injuries;
  • household objects torn or broken by the abuser;
  • pictures of your household in disarray after an episode of domestic violence;
  • pictures of weapons used by the abuser against you;
  • tapes of calls you may have made to 911, which can be subpoenaed;
  • certified copies of relevant criminal convictions of the abuser;
  • a personal diary or calendar in which you documented the abuse as it happened; and
  • anything else that might help convince the judge that is allowed under your state’s rules of evidence.

The more evidence you have, the better. However, even if you have no documents or witnesses, your testimony is evidence. Don’t be discouraged from pursuing your case if the “only” evidence you have is your testimony.

Should I contact potential witnesses before the hearing?

Anyone can be a witness – a friend, a family member, children, an emergency room nurse, a doctor, a stranger who saw or heard the abuse, a law enforcement officer, etc.

Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify. Court clerks usually have subpoena forms that you can fill out and the subpoena will have to be signed by the judge. There may be specific rules in your state regarding how the witness has to be served with the subpoena and even how many days in advance of the hearing s/he must be served. Be sure to ask the clerk or the judge for this information. In some states, the sheriff department will serve the subpoena. In other states, you may have to get someone over the age of 18 to serve it, or a process server. You can ask the clerk of court how to have your subpoenas served.

If the people you subpoena do not come to the hearing, let the judge know. The judge can penalize them for not showing up and you can ask the judge to postpone the hearing until the subpoenaed people do appear.

How can I prepare myself to testify?

It is important to practice telling your story. Even though you lived through the abuse, you may never have had an opportunity to sit down and talk about all of the incidents of violence in an organized, clear way. By practicing in front of another person or in front of the mirror, you may be less nervous to tell your story to the judge in court. Also, as you begin talking about it, often times you will remember new details that may be important for your court case.

Tell your story in your own words and try to speak clearly. For example, in a restraining order case, try to focus on the relevant details of the incidents of violence, threats of violence, or any harassing or stalking behavior that you included in your petition. When describing an incident where the abuser hit you, tell the judge how you were hit, where on your body you were hit, how many times, what type of pain or injuries you suffered, if s/he used a weapon or object, etc. If you are describing threats that the abuser made to you, don’t paraphrase the threat by saying, “S/he threatened to kill me.” Try to remember exactly what s/he said and give those details, such as “S/he threatened to slit my throat and throw me into the river.” In other words, be specific.

You may want to make an outline or notes of the history of violence by the abuser to bring with you to court. Depending on your state’s rules of evidence, you may be able to refer to your notes when testifying to refresh your memory, but you may not be allowed to read your notes aloud. You can ask the judge if you can take notes with you when it is your turn to testify in case you need to remember a date, etc. However, be prepared to testify without them if the judge says, “No.”

If you have children, you may want to talk to a domestic violence lawyer in your state about how to present any evidence about what the abuser has done to the children. You want to be sure not to present this information in a way that may put you at risk of being accused of failing to protect your children from abuse.