This page provides tips on preparing for your final protection order hearing in civil court. Although it is geared towards protection order cases, the general principles may be useful for pro se litigants in other types of cases as well, such as custody cases. Generally, it is best to have a lawyer who is knowledgeable about domestic violence issues represent you at a hearing. However, if you have to represent yourself at the protection order hearing, here are some tips that may be helpful.
What should I do before the hearing to prepare my case?
Custody is also going to be decided in the hearing. How can I best prove that I should get custody?
What is the order of events in the courtroom?
What should I do on the day of the hearing?
1. Contact witnesses who saw the abuse or your injuries.
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 which commands them to appear and testify. Court clerks 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 appear.
2. Get evidence and documentation of the abuse.
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 the complex "rules of evidence," as they are called, 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 your witnesses);
- Medical reports of injuries from the abuse;
- Police reports for when you or a witness called the police;
- Pictures of your injuries (it's better if they are dated);
- 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 (you may be able to get these through the clerk of criminal court);
- 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.
3. 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. 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. For example, 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. 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 advocate or a 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 implicate you in some way (i.e., you don't want to be accused of failing to protect your children from abuse) and so asking a lawyer for advice on this topic is often best.
In every state, there are certain factors that a judge is supposed to consider when deciding custody in order to determine what custody arrangement is in the child's best interests. To find out what the "best interest factors" are in your state, you can go to the WomensLaw.org Custody page, enter your state into the drop-down menu and look for the question called something similar to “How will a judge make a decision about custody?” You may want to prepare as much evidence as you can (i.e., your own testimony, witness testimony, documentary evidence, etc.) that will address the factors that the judge in your state will consider.
Additionally, in many states, the judge may appoint a custody evaluator to interview the parties. The Leadership Council has a useful guide to help you understand the best ways to present yourself and your story to a custody evaluator.
- Be on time.
- Have your witnesses there and ready.
- Have your evidence ready.
- If you have subpoenaed witnesses or documents and they are not in court, you should inform the judge.
- Dress appropriately (as if you had a job interview).
- Speak directly to the judge; s/he should understand if you feel nervous. Do not speak or argue with the abuser during the hearing. Although it may be upsetting to hear the abuser say things that are untrue, you should have the opportunity to tell your story directly to the judge.
- Always address the judge as “Your Honor.”
- Be prepared to spend all day in court. (There may be hearings before yours.) If you have children, try to find someone to take care of them while you are in court.
- If the abuser comes to court with a lawyer and you do not have a lawyer, ask the judge for a “continuance” so you can look for a lawyer.
- While you are waiting to be called, it is your right to move seats if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you. Tell the bailiff or any sheriff, police or security guard if you are afraid for your safety.
- Stand when the judge enters and sit when the judge or bailiff asks you to.
- Try to remain calm but it is OK if you show emotion.
- Take deep breaths if you feel yourself getting tense. Never lose your temper in the courtroom.
- Always tell the truth.
- If you don’t understand a question, just say so. Don't answer a question that you don't understand.
- If you don’t know the answer to a question, just say so. Never make up an answer.
- Remember that you know your story better than anyone - you are the expert. Don't let the abuser or the judge or a lawyer throw you off.
Each state and court may have variations on this, but this is generally the order of events:
- The bailiff will swear you in by asking you to state your name and swear or affirm to tell the truth.
- Since you are the plaintiff, you will tell your side of the story first and enter any evidence that you have.
- The judge and the abuser's lawyer (or possibly the abuser himself/herself if s/he doesn't have a lawyer) may ask you questions as part of cross-examination, which you must answer truthfully. Cross-examination questions are generally “leading questions,” which means that they are asked in a way to allow for only a “yes” or “no” answer. You may have the right to object to certain questions that the abuser (or his/her lawyer if s/he has one) asks if they violate the rules of evidence or are irrelevant but this may be very hard for a pro se litigant to do because you likely will not know the rules of evidence and what types of questions are allowed and what types of questions are not allowed.
- When you are finished, your witnesses may speak. You may ask them questions, and then the judge and the abuser or his/her lawyer if s/he has one will have a turn to ask them questions. Again, you may have the legal right to object to certain questions that are asked of your witnesses if they violate the rules of evidence, but this may be very hard for a pro se litigant to do because you likely will not know the rules of evidence and what types of questions are allowed and what types of questions are not allowed.
- The defendant will testify and tell his/her side of what happened and enter his/her evidence. It may be very different from yours. The same principle applies as in #3 and #4, above, about your right to make objections during the abuser's testimony if legally appropriate.
- After the defendant testifies, you and the judge are allowed to ask him/her questions (called cross-examination). Cross-examination questions can be “leading” questions, meaning that they are asked in such a way as to only allow the abuser to give a “yes” or “no” answer. The format is similar to “Isn’t is true that XYZ?” or “Didn’t you say/do XYZ?”
- The judge will make a decision after hearing both sides and considering the evidence. The judge may make the decision right away or may take a recess to give the decision. The recess may be only for a few hours or it may take days or weeks to give the final decision.
- If the judge grants you the final restraining order, the judge may sign it that day at your hearing. If so, then make sure you get a copy, review it, and ask the judge if you have any questions about it. If the judge is not giving his/her decision that day, make sure to ask the judge to extend your temporary restraining order if you have one.