I took a break yesterday afternoon from losing to Norm Pattis at Words with Friends to finish up a civil protection order hearing in D.C.
Many colleagues eschew any case involving a domestic dispute. The cases are messy. People tend to cry. There is lots of emotion and not much law.
I, on the other hand, love these cases. I am impervious to tears, and there is always tons of material for the lawyer to work with, no matter which side you are representing. It is not like a stranger-on-stranger crime in which the only issue at trial might be the identity of the wrong-doer. Instead, there is always plenty of “back story” that both sides can manipulate into their version of the truth.
And then there was yesterday.
The first words out of the judge’s mouth upon granting the protection order against my client were: “I am deciding this on the basis of credibility.” In other words, the decision would be very difficult to overturn on appeal. And while I always advise clients not to make faces during the testimony, it was I who struggled to maintain an impassive expression during the reading of the judge’s decision.
Opposing counsel seemed surprised. I was angry.
Thanks to meticulous record-keeping by my client, I had plenty of material to work with: emails, letters, text messages, and Facebook entries. I had a voice message left on an answering machine. I had copies of two civil protection orders that had been taken out against the petitioner within a week of her complaint against my client.
The major challenge in preparing for the hearing was in deciding how best to use all the material.
I also had a very combative petitioner as witness. I like this type of witness because they never come across very well: Too motivated. And they tend to exaggerate or otherwise get themselves into trouble. Although the petitioner was represented by a very capable attorney, this witness did not seem to trust her lawyer to bring out the necessary facts. She did not trust the court to listen to the facts and come to the right conclusion. I had to prompt her a number of times to answer the question I asked, not the question she wished I asked.
On our side, I had a very calm and well-spoken client who, during his testimony, spoke with affection and concern for the petitioner. His mother and best friend also testified on his behalf, and although there were minor inconsistencies in their testimony that opposing counsel seized on, these inconsistencies did not bother me. It proved to the court that the testimony was not rehearsed. It proved to the court that the witnesses had abided by the court’s directive not to discuss the testimony during the week-long period between the first day of the hearing and the second.
And in the end, the court granted the protection order against my client. The order lasts for a year. If my client violates it in any way, he can be prosecuted for contempt of court with a maximum penalty of 180 days in jail and a $1000 fine. More seriously, the civil judgment against him could violate the terms of his parole in Virginia, sending him back to prison for the remaining 14 years he has left on his sentence.
In retrospect, my client’s major failing seems to be that he is a convicted felon. Knowledge of this conviction by the petitioner turned what should have been innocuous language into words that, in the court’s opinion, would have put an objectively reasonable person in fear for her safety.
So instead of celebrating a victory, after which every decision you made is confirmed as the right one, my client and I were left dealing with the consequences of the loss. After leaving prison in 2006, my client found a job and then worked his way up to management at an ABC store. He lost the position when the state-owned store found out it was not allowed to hire ex-felons. And now there is this. It is not what my client does; it is who he is. My client can’t seem to catch a break.
While I claim to be impervious to tears, I am not unaware of the impact the display of emotion can have on the finder-of-fact. At one point during cross-examination of the petitioner, I replayed the voice message she had left on the answering machine of my client’s parents. The message was consistent with our theory of the case; namely, that the petitioner was angry at my client for spurning her romantic advances, not frightened, and that she was primarily interested in recovering money she had given to my client with the hopes of winning his affection.
It was at this point that the petitioner’s entire demeanor changed, and I instantly regretted my decision to play the tape when the petitioner, who up until that point had been angry and aggressive, broke down on the stand. I gave her a moment after the tape ended to collect herself. Although I had been uncharacteristically optimistic going into the hearing about the chances for success, I knew then, watching the judge’s reaction, that there was a real possibility that we would lose.