Do I Need a Lawyer to Defend a Restraining Order?

Not long ago, I was sitting in Brookline District Court, waiting to be heard on a felony larceny defense. A restraining order hearing was scheduled first, and so I sat quietly and watched. Massachusetts courts offer abuse prevention orders and harassment prevention orders that require one person to stay away from another. A party can be eligible for one or the other depending on the nature of the relationship with the defendant. Anyone can apply for a harassment prevention order, but abuse prevention orders are generally reserved for family members or people who have romantic relationships.

A gentleman in a freshly-pressed gray suit approached the defense table. He looked like the prosecutor in My Cousin Vinny : about 50 years old, well-styled salt-and-pepper hair, leather briefcase. It was obvious that he was an experienced courtroom attorney.

I was surprised to see that no one joined him. He was the defendant. I later found out that he was corporate attorney in Boston. Earlier in his career, he had been a prosecutor with the Justice Department. On paper, this gentleman was as well-qualified as anyone to litigate a restraining order hearing.

Across the aisle, at the plaintiff’s table, stood his wife and her lawyer, who also came across as an experienced professional.

Once the case was called, the judge established that this was a restraining order extension hearing – a judge had already ordered the husband to stay away from his wife for a year, and there were conditions set about how he was allowed to contact her to arrange visitation of their children. The year had passed, and at this hearing, the wife was asking the judge to keep the order in place.

By the end of the hearing, a couple of hours later, the husband was sitting on a bench in the courtroom, with his face in his hands, sobbing uncontrollably. What happened?

In a restraining order hearing, the judge has to determine, among other things, whether the person seeking the order is afraid for their safety, and whether that fear is reasonable. The person who wants the order speaks to the judge first and presents her evidence. During that time, the defendant generally has to sit quietly, but does have the right to object when legal rules are broken. For example, there are several rules a person needs to follow if they want to show text messages to a judge, and if those rules aren’t followed, the judge won’t consider the messages in her decision. After the person who wants the order finishes, the defendant can cross examine her, or present evidence of his own.

It’s helpful to have an attorney, because legal rules are complicated, and it’s rude to break them. Obviously, acting rudely in court can make a person look unreasonable. In any hearing, the judge is trying to figure out which of the two parties (if either of them) is acting reasonably.

I have represented people who wanted restraining orders as well as people who trying to convince the judge a restraining order was inappropriate. An attorney can be helpful for several reasons: not only can they help explain the courtroom rules to the client and help prepare for a hearing, but during the hearing, an attorney has the benefit of being less emotionally tied to the case. During a hearing, it can be very difficult for a person to stay calm, especially with the competing pressures of how the hearing seems to be going – whether it seems like you’re winning or not – and the pressures parties feel when they think about how winning or losing is going to affect their lives. Court can be tremendously emotional for people, and sometimes, they crack under that pressure.

The wife testified first. She described her long marriage, and several incidents that had occurred during its course where she felt afraid of her husband. She spoke for a long time, and as she spoke, it became clear that the husband disagreed with what she was telling the judge. It also became clear that this gentleman was very emotional about the loss of his marriage and being separated from his children. The wife testified that her husband had never hit her or anyone else, but that, even so, she was afraid that he might.

As he listened, the husband became more and more upset. He became so upset that, several times, he apparently forgot the rules that control court hearings. He objected several times to the wife’s testimony, but the wife’s lawyer hadn’t broken any rules. When the judge told the husband he was wrong, the husband got even more upset. His frustrations about what his wife was saying were doubled by the fact that he was embarrassing himself professionally. Quickly, the good impression this man had made when he walked into the courtroom was gone. Even though he’d probably argued in court hundreds of times, when the case was personal, he couldn’t handle the pressure.

By the time the husband had the chance to tell his side of the story, he was an emotional wreck. Before he even got started, he was red-faced and sweating. When he spoke, his voice cracked, he held back tears, he shouted. We all listened to his testimony about how the failure of the marriage had affected his relationship with his children. He hadn’t seen them in a long time, and it was clearly breaking his heart. He believed his wife was maliciously using the restraining order to limit his ability to see them. He seemed to think it was ridiculous that anyone would think that he – an attorney with a long respectable career behind him – could be dangerous.

The problem was, he got so emotional in the courtroom, that it was easy to believe that he might lose his temper in private. As he went on, his wife’s concerns about her safety seemed more and more reasonable – even though he’d never raised a hand to her.

Sitting in the back of the courtroom, there was nothing I could do except watch him spiral out of control.

I can understand why this gentleman thought he could represent himself, and he had a Constitutional right to do so. But he also had a Constitutional right to be represented by an attorney, and he should have exercised it.

If you’re seeking a restraining order – or if you’re trying to defend yourself from one – you could benefit from an experienced attorney, and Fiorentino Legal, P.C. can help.

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