Three Secrets to Representing Yourself at a Restraining Order Hearing

By Veronica T. Barton, California domestic violence defense attorney and creator of DEFEAT the DVRO

The short answer

You can successfully defend yourself at a restraining order hearing and win, and the secret is preparing in advance. Learn what the judge is looking for, so you can hand it to the judge on a silver platter. Know how to present your evidence, because evidence does you no good unless you can show it to the judge. Learn how to discredit the other party by asking her questions in court and poking holes in her story.

Can you really defend yourself at a restraining order hearing and win?

Did you know that you can successfully defend yourself in a restraining order hearing and win? I know it sounds crazy, because we're so used to hearing about hiring attorneys to represent us in court. While that's important in some cases, I'm going to share three secrets that will revolutionize the way you approach the restraining order you were served with.

What's the secret to winning your restraining order hearing? It's preparing in advance. It's knowing what to expect and how exactly to prepare.

I know you're probably thinking, "How am I going to represent myself? I don't know if I can do that." But again, I'm going to show you a great way to prepare for your domestic violence restraining order hearing and get amazing results.

Secret 1: Learn what the judge is looking for

The big idea is that the judge must follow the law, and the law tells the judge to look for specific things. If you know what the judge is looking for, you can hand it to the judge on a silver platter.

Who has to prove what

First, let's talk about what needs to be proven and who needs to prove it at a domestic violence restraining order hearing. The petitioner is the person who filed for the restraining order, the person who's claiming that they were abused. You, the person who's responding and defending against it, are the respondent.

The burden of proof is on the petitioner. If the petitioner does not present sufficient evidence, then no domestic violence restraining order will be granted. You, the respondent, don't have to prove anything.

How certain the judge has to be

The petitioner is presenting proof. But how much do they need to convince the judge? The standard for domestic violence restraining orders is "more likely than not," also known as 51 percent. You may have heard about "beyond a reasonable doubt" before. That's for criminal cases. It's not the same here. It's more likely than not, 51 percent.

What the petitioner has to prove

The petitioner needs to prove that a restraining order is needed to prevent future domestic violence. It's not just about whether abuse occurred in the past. It's whether a domestic violence restraining order needs to be issued to prevent domestic violence from occurring in the future.

What counts as domestic violence

A lot of people don't know this, because many words in court are not used the way we use them in everyday speech. Most people, when they think of domestic violence, think about hitting and physical injuries. That is a form of domestic violence: physically hurting or trying to hurt someone, intentionally or recklessly. Sexual assault is also domestic violence.

But it's also making someone reasonably afraid that he or she, or someone else, is about to be seriously hurt. That includes threats or promises to harm someone. This matters most with text messages. Maybe you sent something in a moment of anger that you didn't really mean. I don't want you to underestimate your opponent. You don't want to think, "She's got nothing. She just has some text messages, she's not even saying that I hit her, and I've got this in the bag." That is a form of domestic violence, and you need to be prepared for it.

There's also behavior like harassing, stalking, disturbing someone's peace, or destroying someone's personal property. Those can all be considered domestic violence too.

What is relevance, and why is it important?

Only evidence that's considered relevant is allowed in court, so any testimony or other evidence has to be relevant. I'm going to explain what that means.

The test for relevance is this: does a piece of evidence or a fact relating to one of the things that needs to be proven make that more likely to be true?

Here is an example of irrelevant information. I just got a YouTube comment from someone who thought something was important, but I think it's most likely not relevant. They said that the petitioner gave them a disease and that they have proof, a voicemail. You have to ask yourself: does that make it more or less likely that domestic violence occurred, such that a domestic violence restraining order is needed to prevent it from happening in the future?

If I were the petitioner, I might want to bring that up to show, "I gave him this disease. I cheated, and that was my fault. But then he got really angry with me and committed an act of domestic violence. I'm scared, and I need this domestic violence restraining order to help me and prevent that from reoccurring."

You see how that works. But if he tries to bring up "She gave me a disease," that won't be compelling to the judge.

Who pays rent and who broke up with who are not necessarily relevant. Neither is the other party's abuse of you if you are the respondent and you didn't file a restraining order against her too (which in general I don't necessarily recommend). You may want to slip at least some of it in to give the judge context, but don't take that too far.

You may be thinking, "The petitioner is representing herself, she's not going to know any of this." The judge knows this. When you start trying to bring up other things while the judge has 30 cases to hear, the judge will probably cut you off quickly. You'll get frustrated, and you may even give up, thinking, "What can I even say?" I've seen it happen, so you don't want that to be you.

Step 1 of DEFEAT the DVRO covers what the judge is looking for, including what needs to be proven and how to read a restraining order.

Secret 2: Understand how to present your evidence

The main idea is that evidence on your side does you no good unless you can show it to the judge. You need to know how to show the judge your evidence.

Text messages

When you prepare your exhibits, first prepare any text messages. Text messages are present in almost every domestic violence restraining order hearing. Make sure they're relevant before you think about presenting them.

Capture the time and date as much as possible, which can be tricky. If you have an iPhone and a Mac, you can sign into iMessage on your computer, and if all of the messages were iMessage, you can save them as a PDF. There are some apps that do this too. If you can't do that, or if you don't have much time before the hearing, you can take screenshots, but make sure they show the time and date.

How many copies to bring

Bring three copies to be safe. Don't bring only one. You need a copy for the judge, and you probably need a copy for the other party. Many times courts will force you to give a copy to the other party, and if you fail to do so, you won't be able to use it. Then you want a copy for yourself, so you can show the judge and explain the exhibit without trying to blindly describe a document.

Audio and video

If you have audio or video, I would have a transcript of it to be very safe. A California rule of court says you need a transcript of any audio you play, unless you have good cause not to. If you have a video recording where the audio isn't necessary, or there's no dialogue, that's fine.

If you have a lot of audio, I recommend a service like rev.com. It's fast, and they'll create a transcript for you. If it's half an hour long, it will take you a long time to transcribe it yourself. They have a version that only has AI, which is quick and cheap. But I recommend the version that starts with the AI and then has a human go through it. They're really good.

Be sure that you're not recording illegally. If you're in California, it's a two-party consent state. There's an exception if, for example, you're recording evidence of a crime, or if the recording took place in an area where the other person would not have an expectation of privacy. But if you had a camera in your living room that the other party didn't know about, you probably won't be able to use that. If they knew about it, if they installed it, or if it was obvious that it was there, then you have a decent chance of using it.

Use binders and put your exhibits in order

If you have a lot of exhibits or text messages, binders might be helpful. As an attorney, I prepare binders. If you prepare binders and bring in three of them, the judge will be impressed with you. The judge is impressed with attorneys who do this. It can help make sure the judge has all of your exhibits, that everything is well organized, and that you've thought through the order in which you will present them. Ask yourself, "In what order am I going to present these exhibits?" I recommend chronological order.

Call the courtroom about playing video

If you have audio or video, especially video, I recommend that you call the courtroom in advance and ask how to present video. Here in California, even within the County of Los Angeles, some courtrooms have great audio visual systems and some don't have any at all. I usually call in advance, and I also bring two laptops and an HDMI cord. I've had to buy and bring in a speaker once for a murder trial, because that court's particular AV system was horrible and I had important audio to play in defense.

Figure that out beforehand. Don't come with your exhibits only on your phone. That's probably the worst thing you can do. There's a decent chance that you won't be able to use them at all.

When to present your exhibits

There are two times when you can present your exhibits. The petitioner goes first and then the respondent goes. The petitioner gives her statement, and then you get to ask the petitioner questions.

The first time is when you're asking the other party questions. If you're using an exhibit to discredit the other party, there's a way to bring it up and pull it out like a rabbit out of a hat during your questioning of her. If you don't know how to do this, I recommend not doing it. I explain it in the full-length course, but it's long, so I can't do it in this video. Skip that part. Don't try to do it clumsily, especially because tensions and emotions are high during these restraining order hearings.

The second time is when you give your statement. I recommend that you present your evidence during your statement, even if you already used it while asking the other side questions.

Explain what each exhibit is

When you use an exhibit, explain to the judge what it is. For example: "These are text messages exchanged between the petitioner and me on whatever date, and I took screenshots of these text messages from my phone." Then you end with, "And this is a true and accurate copy of the text messages." That's very important. I teach this in the course, and I give you exact scripts.

Without learning anything about this, who would know you're supposed to say "true and accurate copy"? There is a lot of lingo and legalese that you can sometimes get away with not knowing in court. But if you can use it, you nearly guarantee that it will go smoothly and that you impress the judge. As the respondent, you want to impress the judge the entire time.

Secret 3: Learn how to discredit the other party

The key point is that you can't approach a restraining order hearing the same way you would approach other arguments with your ex. You need to know how to ask her questions in court and how to poke holes in her story.

Let's go through a key example of how to discredit the other party. This is one of the cross-examination styles that I teach, and it's maybe the simplest one to get across quickly, which is why I chose it here. It's cross-examination style number two, which I like to call "Were you lying then, or are you lying now?" If the petitioner changes her story from what she wrote down when she was trying to get the restraining order to what she says in court, bring that up.

Be ready to find her prior statement fast

After she makes her statement, as I mentioned, you get to ask her questions. I highly recommend typing out the petitioner's statement and bringing a laptop so you can easily locate her prior statements while she's testifying. I like to use the find tool on my computer, especially if it's a long statement that she handwrote. How are you going to search through that during the hearing and also listen? It's too difficult.

You want to be fast. That's one of my key ways that I win trials and restraining order hearings: being fast and being able to locate it. I think that's a killer secret. I don't know a lot of lawyers who do that, but it works very well.

Use it sparingly

Be careful. Use this only for important facts that would not be easily forgotten. Don't use it for every small detail. Dates and exact times are not necessarily going to be all that important. You probably want to use this only one to three times during the restraining order hearing. That's a general rule, and some of these hearings go on for a long time, but don't overdo this.

I'm emphasizing this because I've had clients, in both criminal and domestic violence restraining order cases, who want every single one of these details to come out. If I do it as a lawyer, the judge will probably get annoyed with me. But if you do it as the respondent, you'll look bad. You'll look nitpicky, the opposite of how you want to look, and you'll make it that much easier for her to get the 51 percent. Don't do that.

Commit her to her testimony first

Commit her by getting her to agree that she's absolutely sure. Here's the scenario. The petitioner wrote on her request for a domestic violence restraining order that during an incident she claims happened on Thanksgiving Day, you struck her in the back of the head. She never mentioned being hit in the face. But today in court she testified that during that same incident on Thanksgiving Day, you repeatedly struck her in the face, not the back of the head. That is a big difference. How do you point that out?

Your first question will be: "You testified a few minutes ago that on Thanksgiving Day I struck you repeatedly in the face." She's going to say, "Yes, that was my testimony."

Your second question will be: "You're absolutely sure that I struck you in the face?" This is what I mean by committing her to it.

You want her to say she's absolutely sure. Then, when you pull out the statement she made before that is completely different, she has no wiggle room to say, "Maybe I forgot," or "I wasn't really sure today," or "I haven't had my coffee this morning." It takes away those excuses. That's key, because those excuses will come, and you want them to fall flat. You want her to lose credibility, and you want it to be impossible for her to get 51 percent.

Your next question will be: "You wrote a statement as part of your request for a DVRO describing me hitting you on Thanksgiving Day, correct?" I'm going to say yes. "And you signed that statement under penalty of perjury." She will say yes. "You promised to tell the truth, the same as you promised today, correct?" She's going to say yes.

This is the zinger: "Isn't it true that on your DVRO you wrote, 'He struck me in the back of the head'?" She might say, "Yeah, but." The judge won't like that. The judge will want her to answer the question, and what can she say? She's already changed her testimony, and she's already committed. She said she was absolutely sure.

"Isn't it true that on your DVRO, you never mentioned anything about me hitting you in the face?" This is the super zinger. You got her. If you use this question format and bring this up, how can the judge believe her now?

Frequently asked questions

Can I really represent myself at a restraining order hearing and win?

Yes. You can successfully defend yourself in a restraining order hearing and win. The secret is preparing in advance and knowing what to expect and how exactly to prepare.

Who has to prove what at a domestic violence restraining order hearing?

The burden of proof is on the petitioner. If the petitioner does not present sufficient evidence, then no domestic violence restraining order will be granted. As the respondent, you do not have to prove anything.

What counts as domestic violence at a restraining order hearing?

It is not only hitting and physical injuries. It also includes making someone reasonably afraid that they or someone else is about to be seriously hurt, which includes threats or promises to harm someone, such as in text messages. Behavior like harassing, stalking, disturbing someone's peace, or destroying someone's personal property can all be considered domestic violence too.

How many copies of my exhibits should I bring to the hearing?

Bring three copies to be safe: one for the judge, one for the other party, and one for yourself. Many times courts will force you to give a copy to the other party, and if you fail to do so, you won't be able to use it.

How often should I point out that the other party changed her story?

Use it only for important facts that would not be easily forgotten, and probably only between one and three times during the hearing. If you use it on every small detail, you will look nitpicky and make it easier for her to get the 51 percent.