When domestic violence victims are turned away by legal services providers, they often have no place else to turn. Lawyers face pressure to diligently assess cases and to err on the side of providing essential advocacy. Legal services attorneys in particular must balance considerations of clients’ needs, the capacity of the firm, and the likelihood of accomplishing meaningful client outcomes. While a victim hospitalized for a broken leg may have compelling safety concerns that need to be addressed, a victim whose injuries are more difficult to prove and whose abuser has never been arrested may be more at risk of losing custody of her children to an abusive former partner. Balancing out competing needs for legal advocacy in the context of limited resources is challenging. It can also sometimes be a real challenge to assess cases without making personal judgments about clients who may seem unlikeable, angry, ungrateful, or uncooperative. Sometimes survivors facing the most complex legal needs do not present the most compelling narrative. And sometimes survivors facing the most danger do not expressly state that they fear the person who has abused them. Many survivors minimize their abuse by using language that inaccurately suggests mutuality of violence between the parties. To complicate matters even more, some victims who truly need legal help sabotage their own cases by not being honest with their attorneys about important negative facts that attorneys need to know about to prepare. Over time, a skilled interviewer will begin to catch these nuances and learn to investigate further so that victims in need of help are not turned away, and they are prepared to address unfavorable facts. The following sections contain tips for assessing a case for representation.

Certain key questions may assist with accurate case evaluation.

1. What is the extent and nature of the abuse?

• Is the violence escalating?
• Is there a pattern of stalking, control, or regulation and monitoring of daily activities?
• Has the violence ever involved strangulation or use of weapons?
• Does the abusive party have access to a gun?
• Does the abusive partner show disregard for legal consequences, such as by violating restraining orders?
• Has the abusive party made death threats?
• Have there been threats of suicide?

2. Is the client particularly vulnerable in the court system?

• Does the client have limited capacity to express herself or articulate her situation because of mental health issues, intellectual disabilities, or the effects of trauma?
• Does the client have limited English proficiency?
• Does the abusive party have an attorney?
• Does the abusive party have significantly more financial assets for litigation than the victim?
• Has the abusive partner initiated litigation against the victim?
• Does the case involve complicated issues that require expert testimony or testimony from medical professionals?
• Was the client wrongfully arrested for domestic violence?
• Does the client have a criminal record that she will be unable to adequately address if representing herself?
• Are there other negative facts that the victim will have difficulty explaining without the assistance of an attorney?

3. Can meaningful legal outcomes be realized for the client?

• If you do prevail, will the outcome improve safety and stability for the victim or her children?

In general, when assessing a case for representation, try not to decline representation based solely on reasons such as these:

• There is no evidence to corroborate the client’s reports of abuse.1
• There are no visible physical injuries.
• The client is unlikeable.
• The client has resisted an abusive partner by engaging in self-defense or in futile retaliatory violence.
• The client has a criminal record.
• The client has substance abuse or mental health issues resulting from the abuse or that may be used to undermine her credibility.
• The client withholds negative facts in early interviewing processes for fear that you will not take the case.
• The client has initiated contact with an abuser after separation or after obtaining a protective order.

• 1It is not at all unusual for victims to have never called the police nor sought medical attention. Similarly, the abusive partner may have destroyed her phone or deleted her cloud to destroy pictures or texts showing the abuse.

Not all domestic violence cases should be addressed through emergency proceedings. Once you have determined that you will assist a victim in addressing her legal needs, it is important to be realistic with clients about what can be accomplished through legal action. In some cases, the complexity of the facts or evidence makes it impossible to competently litigate cases in the time frame demanded by a protective order statute. For example, cases that require expert testimony to address issues relating to victim behavior, children who align with an abuser, or child sex abuse, can be difficult to prepare for in the 21 days or fewer between the filing of a petition for protection from abuse and the hearing. In those cases, lawyers should speak frankly with their clients about immediate safety considerations, long-term litigation goals, and options for different proceedings. Rushing to court for a protective order can do more harm than good if the case cannot be litigated properly and the court makes findings and orders that pre-dispose decisions against your client in the future.1

• 1For discussion on developing a thoughtful, comprehensive case strategy, see Section 2.6.

Domestic violence protective order cases can present pre-trial practice challenges. The emergency nature of protective order proceedings means that in many cases, formal pre-trial discovery is unavailable or is fast-tracked. In some cases, lawyers must prepare for court, but there is little time to conduct important investigative functions. Lawyering in these cases requires pre-trial preparation for multiple possible scenarios that cannot be determined before the hearing. But diligent pre-trial practice, even in this setting, makes it possible to avoid a true “trial by surprise” scenario.

There is so much work to prepare for court that lawyers sometimes forget the basics. But taking the time to be thoughtful about a case theme that is specific to your client and her case can go a long way toward helping the judge see your client as a person instead of just another petitioner. A case theme does not need to be complicated. Think of it as an idea that creates a lens through which the judge will hear the evidence. It must be threaded throughout the case. For example, a case theme can be something as simple as “Ms. Smith and her children deserve peace in their home.” Or “No one should have to live like this. Ms. Smith should not have to spend one more day looking over her shoulder, wondering if today is the day he will make good on his promise.” By contrast, a case theme can also be about the abusive party, which can sometimes be helpful if you want to forecast to the court that the defendant will be accusing your client of misconduct: “Mr. Smith will never take responsibility for his conduct and will always find a way to blame Ms. Smith for his problems.”

Some general rules: (1) a case theme should be simple and have logical appeal; (2) it must always be provable and not overstate your case; (3) it should give the judge a reason to care; (4) it should anticipate issues or unfavorable facts the other side might raise; (5) it should be broad enough that it can play a role in each part of your case. The case theme should always be shared with your client in advance of court. If you got it right, your client will feel heard and validated because it speaks to her experience. Sharing your case theme with your client helps confirm that you “got it right” and will help your client stay focused on the issues that matter most when testifying.

An effective case theme can also present the opportunity to respond to the other side in the earliest stages of litigation. Your client almost always knows what her abusive former partner will say about her. Ask your client directly “what is he going to say about you” or “what is the worst thing he will try to say about you, true or not.” When it makes sense, work those issues into your case theme. For example, if financial, housing, and employment instability are issues the abusive party may try to use to his advantage for custody, connect those problems to his own bad acts (e.g., harassment on the job, fleeing to shelter because of abuse), and incorporate that into your case theme (i.e., “Mr. Smith hopes the court will reward him for his own bad acts and the harm they have caused to his family.”). The same argument could apply to mental health issues attributable to the abuse, such as depression and anxiety. Be careful, however, not to feature or highlight unfavorable facts that will play only a peripheral role in the case.

Lawyers representing survivors in protective order cases must not only conduct quick, focused investigations, they must quickly decide when to edit evidence and testimony that detracts from the client’s “core story” and fails to support the case theme.

Quickly determine what, if any, witness testimony to present in addition to the client’s testimony. Even within a shortened time frame, each witness should be prepared for court by running through the direct, preparing for cross, and explaining the process of objections.

In most jurisdictions, it is not customary to conduct formal discovery in protective order proceedings, even though it may be possible. Sometimes there is insufficient time to conduct written discovery, but sufficient time to notice a deposition. Consider opportunities to conduct formal discovery before a protective order hearing. When a defendant fails to respond, it may justify a continuance that includes maintaining the TRO in place while you obtain (and, if necessary, compel) discovery. Discovery is valuable in any case to help you prepare for the defendant’s version of events, but in a case involving child or spousal support, it can ensure that you can produce the best evidence of the other party’s income and ability to pay.

Once you examine your discovery options within the time frame set by the rules of civil procedure,1  make a case plan that establishes what you need to prove, and whether the sources of proof will require that you obtain them through interrogatories, requests for production, requests to admit, depositions, or subpoena.

Many domestic violence perpetrators manipulate the legal system. Do not rely on the abusive party to respond honestly or timely to discovery. Whenever possible, try to get the information directly from a third party, e.g., employer, hospital, day care center, Internal Revenue Service, etc. Approach depositions with caution, and carefully explore safety considerations for both you and your client. Arrange for depositions to take place in a secure setting, such as a courthouse with metal detectors and security, and do not allow the abusive party to be alone with your client.

• 1See La. C.C.P. arts. 1421 (General Discovery), 1457­–1458 (Interrogatories), 1461–1463 (Production of Documents), 1466–1468 (Admissions), 1437–1439 (Depositions).

Do not try to prove everything and every incident. Plan to prove a limited number of incidents, and choose your best evidence. In general, your case plan should include proving:

• The two most recent incidents of abuse
• Two or three of the worst incidents of abuse
• The general nature and frequency of abuse
• Incidents resulting in serious bodily injury or requiring medical attention
• Incidents involving the use of guns or other weapons
• Incidents involving strangulation
• Threats to kill
• Stalking and surveillance
• Incidents result in police action, especially if criminal charges are pending
• Incidents for which you have strong corroborative evidence, such as photographs, medical records, or eyewitness testimony

​​​​​The most frequent sources of evidence to corroborate abuse include:

• Photographs of injuries or property damage
• Phone records
• Voice mail messages
• Emails/text messages (take screenshots when possible)
• Torn or bloody clothing
• Police reports
• 911 recordings
• Medical records

In addition to client testimony, witnesses often include:

• Children
• Police
• Neighbors
• Family
• Friends
• Co-workers

Finally, consider the other types of evidence you will need:

• Evidence in the abuser’s control or possession
• Evidence that supports ancillary claims such as child and spousal support, child custody, and housing
• Evidence necessary to rebut claims from the other side
• Evidence of positive parenting or previous caretaking history

Once you have decided to represent a survivor in need of legal services, do not be afraid of the facts. Make sure to follow up with your client on issues or allegations that you don’t “feel” good about. Whatever issues you see, the court will find them and likely focus on them, often to your client’s detriment. Clients are imperfect, but their actions are mostly rational and can be explained. It is the lawyer’s job to take the time necessary to understand any confusing or complicated facts or behavior and to present them effectively to the judge.

People subjected to abuse by their intimate partners rarely conform to societal notions of “good” or “deserving” victims. Representing survivors can be challenging not only because clients are imperfect, but also because society imposes unrealistic expectations on them. Most people expect a victim to appear afraid of her abuser, not angry at him. As a result, it is important that attorneys prepare to deal with allegations that your client is the aggressor or is mutually violent. In some cases, police may have wrongfully arrested a victim when she called for help, bolstering the abusive party’s claim. In cases like these, it can be useful to present testimony and evidence that draws a distinction between the purposes and effects of violence used by either party in the relationship. Victims tend to use violence as a form of resistance, in either self-defense or retaliatory resistance to abuse and control. Victims’ use of force tends not to result in the same level of physical or emotional harm to the abusive party unless the victim uses a weapon to equalize a physical power imbalance. Domestic violence perpetrators, on the other hand, tend to use force and violence to exert control over and enforce compliance from their partner, and the violence they use tends to cause greater harm and create more far-reaching consequences for the victim.

Some other issues that may require special consideration by lawyers include:

• Survivors with substance dependence issues
• Survivors with mental health issues
• Survivors who injured the abuser
• Survivors with an arrest history
• Survivors who maintain contact with an abusive former partner after obtaining a TRO

Make sure to “connect the dots” if the abuse or resulting trauma gave rise to any of the issues above. The National Center on Domestic Violence, Trauma & Mental Health has an excellent resource guide on representing clients with mental health issues.1

1. Victim Stereotypes.

Victim and perpetrator stereotypes often come into play in domestic violence cases. Effective case planning includes preparation for a variety of predictable defenses that abusive former partners use against survivors, most of which play upon gendered and/or racist stereotypes such as (1) the lying, vindictive, or scorned woman; (2) the hysterical, crazy, or exaggerating woman; (3) the provocateur; or (4) the cheating manipulator. Your client is likely to know which of these the batterer will use. Do not underestimate the effectiveness of these powerful cultural archetypes.

In addition to the gendered stereotypes that abusive former partners and their lawyers frequently exploit, commonly held beliefs about “real victims” of domestic violence also come into play. For example, when victims present as angry or resistant to their abusers or even simply insistent in pursuing legal protections, they are readily cast as mutually violent perpetrators and as “high-conflict” or “contentious” litigants.

2. Perpetrator Stereotypes.

Lawyers must also prepare for the role that stereotypes about domestic violence perpetrators will play in their case. The race, economic privilege, and professional status of the party who is abusive often dictates which stereotypes about victims and abusers rise to the surface. The commonly held belief that domestic violence is primarily committed by people of lower socioeconomic status can make it harder for victims whose perpetrators have financial resources and professional credentials. Additionally, the party who is abusive often benefits from the tendency to conflate domestic violence with “anger management” problems. Although many abusers tend to be experts at managing their anger and directing it to only one safe target (their intimate partner), judges often expect them to present as volatile and angry. When they appear calm and controlled in court, their behavior is wrongly perceived as incongruous with abuse. Similarly, judges who wrongly believe that domestic violence is a mental illness often think that psychological testing will reveal some kind of pathology that is probative of the issue of domestic violence.

By thinking through how these issues will play out between the parties in a case, lawyers can prepare to meet them, and sometimes even confront them directly in closing.

• 1Mary Malefyt Seighman, et al., Nat’l Ctr. on Domestic Violence, Trauma & Mental Health, Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges: A Handbook for Attorneys (2011).

A compelling direct examination is the foundation of a successful trial. A weak direct will lose your case much more quickly than a weak cross-examination. In domestic violence cases, direct examination sometimes makes up your entire case-in-chief, and the importance of conducting it skillfully cannot be overstated. The challenges associated with conducting the direct examination of a client who still suffers from the effects of abuse make the task of preparing for direct even more arduous. Many survivors, even those represented by attorneys, may clam up on direct examination in ways that can negatively affect their cases. Counsel clients on the need to tell their story to the judge and why.

In short, an effective direct examination of your client will do the following:

• Support your case theme with facts and details.
• Evoke specific and compelling imagery of your client’s experiences of being subjected to abuse.
• Minimize the impact of stereotypes about victims and strategies abusive former partner and their attorneys use against victims in family court.
• Establish the necessary factual basis for your legal claims.

Every case is different, and lawyers should avoid a “one size fits all” approach to direct. But this section proposes a general outline for direct that can help structure direct examination in most protective order cases.

1. Establish the identity of the parties and their relationship to one another.
   • Include any other foundational facts that you need to prove as a preliminary matter to entitle her to a protective order. For example, how long the parties have been in a relationship, when the relationship ended, and whether they have children. If the client’s petition lists children as protected persons, ask about their names, ages, and relationship to each party.
2. Ask one or two introductory questions that help your client feel more comfortable and will tell the judge a little bit about her – other than the fact that she is a victim of abuse.
   • Does she work outside the home? Is she a full-time parent? Where are the children in school? Is she in the military? The key is to ask simple questions that the client can answer easily – these often serve to help calm a client down and lift the anxiety felt while testifying in open court. These questions also present the opportunity to make a favorable impression on the judge, by allowing your client to talk about something positive in her life that is not related to the abuse she has experienced. Keep in mind that many clients will not necessarily associate a job with their sense of personal identity, so be respectful of that and don’t always use employment as a way of introducing your client to the court. But if your client has a job that places her in a position of trust or responsibility, that information can be used to help paint a picture of your client that is helpful.
3. Provide preliminary information about any children who are the subject of a request for protection or temporary custody.
   • If you haven’t done so already, make sure your client testifies upfront about the children’s names and ages and usually their schools and what grade they are in. Often, judges want to know right away what their living situation is. Have your client testify about where the children are living and how long they have lived there. If there are complicated custody issues because an abusive party has recently taken the children, provide a brief overview of that, and come back to it in more detail later – after testimony about the history of abuse (as it may then be viewed in a different light – as part of a pattern of abuse). Try not to get in depth on custody issues at this stage of direct – you do not want to leave the court with the impression that your case is a custody dispute veiled as a protective order proceeding.
4. Ask preliminary questions that put the most recent incident of abuse in context.
   • An effective direct examination will begin “painting a picture” for the trier of fact and trigger the listener’s imagination. The lawyer must direct the testimony so that the client stays focused on the core narrative but also contextualizes it enough to make it vivid and compelling. You should begin this process by “setting the stage.” Ask your client where she was and when, and elicit any other key information about the setting (the time of day, which room in the house, etc.). Eliciting details like this will help trigger your client’s active memory of the event, which is helpful for avoiding generalized descriptions such as “we were fighting and he hit me.”
5. Follow up and clarify. Ask questions about anything your client “glossed over” and clarify any vague or confusing language.
   • If your client is protecting herself emotionally by giving vague descriptions of the abuse she experienced, it is your job to ask more questions and elicit the details necessary. Your client may have left out key information about threats the abuser made during the incident, or other important information. In addition to clarifying and following up about missing information, also go back and “elongate” testimony about important incidents, such as those involving strangulation. Ask your client for details such as whether the abusive party used one hand or two, whether her breathing was restricted, what she was thinking and feeling, and details she remembers about the abusive person during the strangulation, such as what he was saying or the look in his eyes.
   • Another issue you may need to clarify at this stage is any statements your client may have made that made it sound like the violence or “fighting” was mutual.
6. Go through each additional incident you plan to present similarly, and then wrap up with testimony about the general frequency of the conduct.
   • Ideally, select three or four of the most compelling incidents for detailed testimony. Highlight the most recent incidents, incidents involving strangulation, death threats, guns, weapons, injuries, arrest, or stalking, and any incidents involving the children. If there are countless incidents like these, highlight three or four of the strongest, and then provide more general information about the nature and frequency of the abuse.
7. Ask questions that wrap up the story of the abuse and move the client out of trauma before she must answer questions from opposing counsel or the defendant.
   • While it can be tempting to end direct at the most powerful moment, it can be self-defeating to turn your client over for cross examination while she is still reeling from testimony about the abuse. Order your direct so that you can transition your client to topics not related to the abuse before it ends. Typically, you can do this by asking questions about entitlement to ancillary relief. This may be a good time to return to any custody issues, including testimony about your client’s role as a primary caregiver to any children at issue.
8. Address negative facts to take the sting out of her anticipated cross-examination. “Bury” this in the middle of the direct.
   • ​​​​​​​In this section, you should address any issues you expect to be weaponized against your client during cross-examination, such as why she didn’t call police, why she didn’t tell people about the abuse, whether she also hit the defendant, prior arrests, etc. The goal is to frame unfavorable facts before the defendant or his attorney has a chance to do so, but not to “highlight” them. Make sure that you have reconciled any issues that can be used against your client to make her seem not credible or mutually violent. For example, this is where you may need your client to explain facts such as post-TRO contact she initiated with the other party.
9. Ask questions that establish her entitlement to ancillary relief, such as custody, support, use and possession of a home or car, etc.
   • Make sure to ask questions that lay the foundation for ancillary relief.  For example, if you don’t have your client testify about the fact that she needs the family car to drive the children to and from school and then to her job, the court may be inclined to grant the car to the abusive partner, especially if it is registered in his name.
10. Finish strong.
    • At this point, the testimony about abuse has often been followed by testimony about issues like child support and financial issues.  Make sure to go back at the end and remind the court why your client is here. End by asking a question or two that will allow your client to communicate something about either her fear of the defendant, how her life and/or her children have been affected by the abuse, or how the defendant’s behavior is escalating. This can be a good time to elicit testimony about the emotional toll of abuse and stalking, or to have your client describe the burden of changing daily routines and activities to stay safe.
    • Remember to always plan ahead about where in this outline you will authenticate and introduce exhibits, and prepare objection responses in advance.

Always schedule time to meet with your client and go through her direct examination before court. Begin by explaining your goals for the direct examination, what issues will be important, and what issues will not. Talk to your client about any tendencies she may have to gloss over details, to appear angry or defensive, or to minimize abuse. Then role play the direct examination, giving the client feedback about anything unclear or confusing, as well as her pacing and demeanor. The role play will help you adjust your direct examination outline as needed before the hearing. Other tips for client preparation:

• Frankly discuss the emotions the hearing might trigger.
• Don’t discourage emotional expression during her testimony.
• Encourage honest emotional responses in the courtroom (except anger, which can be weaponized to suggest she is the aggressor or mutually violent).
• Explain why it is important that your client tell what happened to her.
• Advise her about the importance of tone and body language for credibility, as the court will be watching both of them while they are testifying and even while they are not.
• Make sure your client understands that being “tough” to prove something to her abuser in court can backfire.
• Reconcile all inconsistencies or seemingly illogical facts and behavior in advance of court, by pointing them out and addressing them.
• Ask your client whether she is worried about any issues that might be brought up in court.
• Make sure your client understands your case theme, and what facts and evidence in her case are most compelling and best support her claims. While a lawyer should never manufacture a client’s testimony, it is critical that the lawyer prepare the client to testify about what is important to the judge and to leave out what is unimportant.
• Encourage your client to use language and style that is natural to her (except when it is necessary to slow her down).
• Avoid discussing domestic violence terminology that, if repeated during client testimony, will sound disingenuous and coached (e.g., “He’s obsessed with power and control.”).
• Identify a client’s tendency to be distracted by issues that do not support her “core story” (e.g., the abusive former partner’s infidelity). Talk to her about what the focus should be on in court, and why.
• Identify and address a client’s tendency to “gloss over” details of painful events. Practice doing it differently.
• Identify and address client’s tendency to minimize, deny, or use language that characterizes abuse as mutual.
• Ask the client to make a timeline of abuse that can serve as a reference point for both of you.
• Make sure she understands the process of objections.
• Practice the direct, for both substance and pace, and to ensure that the client can tell her full story.
• Prepare the client for a judge’s questioning style, as some judges use an inappropriate questioning style that may intimidate or traumatize a victim. You do not want your client to be surprised by an untrained or unkind judge’s aggressive style.

An essential part of preparing your client for court is preparing her for cross-examination. She needs to know what to do when questioned by opposing attorneys or a pro se defendant. Explain the process and what types of questions the abuser or opposing counsel might ask. Reiterate that this is not a time to get into an argument, but rather to answer questions concisely and without a lot of explanation if possible. Explain that they should pause before answering so that you have a chance to object, and make sure they know to stop talking if they hear you object. Explain that often the party conducting the cross will be trying only to prove that she is an “angry” woman and so getting into an argument will only help the abuser’s case.

It is especially important to talk with clients about the possibility of being cross-examined by her former abusive partner. Reassure her that it is your job to object to any inappropriate questions or aggressive conduct and that you will come back after the cross is finished to ask questions and clarify any answers that seemed incomplete or misinterpreted. Also, tell your client that if it feels more comfortable, she may look at the judge, instead of the defendant, when answering his questions.

After you have discussed these issues with your client, role play the cross-examination. Make sure your client clearly understands that it is a role play to help her practice for court, and you will pretend to be aggressive and insensitive. Before the role play, you should brainstorm all potential issues for cross and focus on some of the most unfavorable facts in the case. Be sure to consult with your client about what she believes the abusive party’s strategy will be, and what kinds of things he will try to say or bring out to make her look bad or not credible.

In domestic violence cases, children are often the only witnesses who can corroborate the victim’s testimony about abuse in the home. But many judges believe strongly that children should not testify because of the risk that the experience of testifying will be traumatic. In some cases, however, the child’s testimony is essential to securing orders of protection that will prevent future harm. The child’s testimony can make it more likely that the child will be safer in the future. But children, like all people, are complicated. They can exhibit a wide range of responses to their experiences of abuse, all of which must be planned for. Clients often accurately predict how children will respond to questioning, and this can help lawyers decide whether to call a child witness and how to prepare.

In Louisiana, children’s testimony in family law cases is generally taken through a Watermeier hearing.1  Although some courts expect attorneys to file motions for a Watermeier hearing if they intend to call a child witness, most courts will not allow child testimony through any other process anyway, unless the child is 16 or over. During a Watermeier hearing, the child’s testimony is taken in chambers on the record rather than in the courtroom, and the questioning is conducted by the judge instead of the attorneys. Attorneys should be allowed to provide proposed questions for the child in advance of the hearing, though there is no guarantee that the judge will ask every question proposed.2  Attorneys are also afforded the opportunity to be present in chambers for the child’s testimony. Opinions differ about this practice. Many attorneys feel strongly that it is essential to be present when the judge speaks to the child, so that he or she can assess whether follow up questions are needed or whether the questioning sufficiently addressed key issues. It can also be important for attorneys to know exactly what was said without the necessity of ordering a transcript because it may be necessary to incorporate the evidence into argument or to present evidence in rebuttal. On the other hand, some attorneys choose to waive their presence in chambers during the child’s testimony, especially if the defendant is pro se and would be entitled to personally sit in on the testimony if the lawyer does. To avoid the possibility of intimidation, it could sometimes make sense to have neither the petitioner’s attorney nor the defendant present. Carefully consider the risks associated with foregoing the opportunity to personally observe the interaction, as well as the risk of intimidation.

If a Watermeier hearing is desired, the attorney should file a motion with the court requesting a hearing to determine whether the Watermeier process is necessary and appropriate for the child. Children who are too young will likely not be allowed to testify, and children over the age of 16 are often required to take the stand to allow for cross examination by an attorney or the other parent.

• 1Watermeier v. Watermeier, 462 So. 2d 1272 (La. App. 5. Cir. 1985).
• 2See D.M.S. v. I.D.S., 2014-0364, p. 5 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1132 (providing detailed account of Watermeier procedure and factual findings).

In child custody cases and protective order cases with child custody claims, special evidentiary rules apply. Under the La. C.E. art. 1101, the rules of evidence serve only as “guidelines” in proceeding involving child custody.1  In other words, the rules of evidence still apply in custody proceedings, but only “to the extent they promote the purposes of the proceeding.”2  The reason for relaxed evidentiary rules in child custody cases is that strict application of the rules does not always serve the best interests of the child.

The judge has significant discretion when determining what evidence to “allow in” under Article 1101. Although the flexibility of Article 1101 can be helpful in some custody proceedings, the rule can also be used by the abusive party to get in documents, statements, or even witness testimony that would usually not be allowed. Consider this risk when deciding how much flexibility you want the court to apply to the evidence you plan to present.

When planning to either offer or object to evidence under this rule, a good way to approach the argument is to think about the purposes of evidentiary rules in general. Evidentiary rules exist to ensure that evidence considered in court is both relevant and reliable. Evidentiary rules exist to ensure that the evidence that judges consider in court is both relevant and reliable. So, any party seeking to enter evidence under Article 1101 should be expected to demonstrate the evidence is both relevant to the issues before the court, and reliable enough to be considered. For example, one could argue that a certified police report that was prepared within hours of a call for service meets this test because it meets a general test for authenticity (i.e., it is what is says it is because it is certified) and reliability (i.e., it was prepared contemporaneously with the investigation, includes a statement against interest by the defendant or an excited utterance from the victim). If it is the other side attempting to introduce evidence under this article, be prepared to argue why the evidence’s authenticity should be called into question, why it may not be a reliable source of information, or why it may not be relevant (e.g., a letter indicating an abuse allegation was “unfounded” by child protective services could not meet a basic test for authenticity, does not fall under a hearsay exception, and is not relevant because it cannot be used as proof that the abuse allegations were more or less likely to be true).

• 1La. C.E. art. 1101(B)(2).
• 2Id.; see Gonzales v. Gonzales, 21-172, p. 2 (La. App. 5 Cir. 7/2/21), 2021 WL 2766900, writ denied, 2021-01211 (La. 11/10/21), 326 So. 3d 1251.

Evidence of similar crimes, wrongs, or acts involving domestic abuse, family, violence, or sexual abuse, may be admitted in a civil case under La. C.E. art. 412.5, so long at its probative value outweighs unfair prejudice under La. C.E. art. 403. As a matter of law, prior bad acts or crimes against the petitioner by the defendant are a key issue that must be considered."1  The probative value of this evidence in protective order and PSFVRA cases should pass an article 403 balancing test with only rare exception because under the DAAA, the court must consider “any and all history of abuse, or threats thereof” and the abuse need not be “recent, immediate, or present.”2  And in custody determinations under La. R.S. 9:364, the court is required to make a determination about whether there is a “history of family violence. So there is no question that prior acts of abuse are relevant and therefore admissible both protective order and custody cases.”3

Abuse against a different intimate partner or acts of violence against others should fall within this rule as well, if they are probative to issues such as the victim’s fear (if the prior abuse is known to her), the possibility of the children’s exposure to future abuse, and the defendant’s dangerousness to intimate partners. Prior bad acts against other intimate partners may also be relevant to prove intent, motive, or absence of mistake.4

Although there is a general prohibition against introducing convictions more than 10 years old under La. C.E. art. 609(B), arguably, the provisions of the more specific article, La. C.E. art. 412.5, should govern domestic abuse-related convictions. Article 412.5 does not create a time limit. Moreover, the imposition of a time limit arguably conflicts with both the DAAA and PSFRVA, which require that courts examine the history of domestic abuse or family violence.

Some of the strongest evidence of prior abuse is a conviction from a criminal proceeding. Even if the defendant has been convicted, do not rely on him to admit the conviction in court, and always plan to prove it without his testimony. To easily avoid authentication challenges, present the court with a certified copy of the conviction. A certified copy will also allow the judgment to be entered under the hearsay exception.5

Prior bad acts or convictions that are not related to domestic abuse or family violence must have a nexus to an issue relevant to the case, such as the victim’s fear, the likelihood of future abuse, a parent’s fitness, or the children’s safety during visits. It can often backfire to attempt to use prior criminal records for more general purposes, such as proving general bad character. Convictions for other crimes are not admissible for purposes of attacking a witness’s credibility, unless the conviction involves dishonesty or false statement.6  If introducing the conviction for a permissible purpose other than showing a prior history of domestic violence, it must not be more than 10 years old.7

• 1See Raney v. Wren, 98-0869, pp. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349-50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 2La. R.S. 46:2135(A); see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”); Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393; Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991) (noting that abuser’s past conduct is perhaps the most important evidence of his future conduct).
• 3See Raney v. Wren, 98-0869, p. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93-2128, pp. 11–12 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349–50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 4La. C.E. arts. 404(B), 402.
• 5La. C.E. art. 803(22).
• 6La. C.E. art. 609(A)(2).
• 7La. C.E. art. 609(B).

Louisiana law requires the police to write a report whenever they respond to a domestic violence call.1  A well-written police report will include the defendant’s admissions, excited utterances by those present, and a description of injuries. In Louisiana, however, police reports are generally inadmissible.2  You may be able to introduce a police report if the defendant does not object. Police reports (or testimony about them) are sometimes admissible in child custody actions under the limited applicability rules of La. C.E. art. 1101.3

In practice, many judges do not allow police reports in under Article 1101 and make a victim’s proof of domestic violence more difficult by excluding them.  Police officer witnesses may use the police report to refresh their recollection. Although police reports are generally inadmissible, a police report may still be used to cross-examination or impeach a defendant with prior inconsistent statements or omissions, which do not require a report’s admission into evidence. Additionally, a related arrest may be admissible even if the report is not, as discussed below.

Arrest records, on the other hand, are generally admissible in custody cases when relevant to an issue other than witness credibility, such as a parent’s fitness.  Although La. C.E. art. 609(F) prohibits an arrest, indictment, or prosecution from being used to attack a witness’s credibility, if the arrest tends to make the existence of any other fact of consequence to the determination of the action more or less probable, it is relevant and admissible.  So, for example, arrest records showing a parent’s history of serial abuse against prior intimate partners should be relevant to show lack of moral fitness or risk that the child will be exposed to future abuse. Arrest records that speak to the children’s best interests are admissible under La. C.E. art. 1011(B)(2).

• 1La. R.S. 46:2141.
• 2La. C.E. art. 803(8)(b); State v Sigur, 578 So. 2d 143, 147 (La. App. 1 Cir. 1990).
• 3But see Gautreau v. Gautreau, 96-1548, pp. 7–8 (La. App. 3 Cir. 6/18/97), 697 So. 2d 1339, 1346.

Partners who are abusive may make admissions to investigating police officers relative to acts of violence. Although they often minimize or justify their behavior, even the minimized behavior they admit to may constitute battery or assault which would constitute grounds for a protective order or finding of family violence. Such admissions are admissible as an exception to the hearsay rule.1

• 1La. C.E. arts. 801(D)(2), 804(B)(3). The applicable rule depends on the circumstances.

A threat by the abuser to harm the victim is not hearsay. It is an admission by a party opponent.1

• 1La. C.E. art. 801(D)(2)(a); see, e.g., State v. Burmaster, 97-517, p. 18 (La. App. 3 Cir. 2/25/98), 710 So. 2d 274, 283.

Letters, texts, or emails by the abusive party are his own statements and therefore are not inadmissible hearsay.1

Emails can be particularly easy to spoof, so it is important that a witness authenticate an email through testimony that establishes the history of party communication through the same email address, the existence of any substance or topic in the email that is specific to the defendant, how the witness knows the email is from the defendant, whether the witness printed copies of the email, whether the email copy has been altered in anyway, and whether the printed email is a true and accurate copy of the email the witness received.

• 1La. C.E. art. 801(D)(2)(a); State v. Strickland, 94-0025, p. 22 (La. 11/1/96), 683 So. 2d 218, 229.

Evidence of an abuser’s flight from crime scene (e.g., assault and battery of victim) is relevant and admissible as an indication of consciousness of guilt.1

• 1State v. Mills, 505 So. 2d 933, 948 (La. App. 2 Cir. 1987).

Former testimony in another hearing may be admissible if the defendant is an “unavailable witness” because of his refusal to testify in current proceeding.1  Additionally, testimony from any previous court proceeding, deposition, or sworn statement may be used for impeachment on cross-examination.

• 1La. C.E. art. 804(B)(1); State v. Adams, 609 So. 2d 894, 895–96 (La. App. 4 Cir. 1992).

Audiotapes of the defendant’s statements or threats, even secretly recorded telephone conversations, may be admissible.1  Louisiana is a single-party consent state when it comes to recording conversations. That means that only one party to the conversation needs to know that it is being recorded.2  911 tapes can be very compelling evidence. Defendants may leave threats on a telephone voicemail. Audio recordings of the defendant may be authenticated through the victim’s testimony that she recognizes the voice on the recording and how (e.g., she has talked to him on the phone many times).

• 1State v. Jeanlouis, 96-474, p. 7 (La. App. 3 Cir. 11/6/96), 683 So. 2d 1355, 1360; Briscoe v. Briscoe, 25,955, pp. 9–10 (La. App. 2 Cir. 8/17/94), 641 So. 2d 999, 1006–07.
• 2R.S.15:1303(B)(4).

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.1  Well-written police reports may contain excited utterances by the victim or children to which the police officer may testify. Also keep in mind that other hearsay statements like this that do not fall within the excited utterance exception can sometimes be later admitted in re-direct as a prior consistent statement once the witnesses’ credibility has been attacked.2

• 1La. C.E. art. 803(2).
• 2La. C.E. art. 801(D)(1)(b).

A child’s hearsay statements to a doctor, mental health professional, or abuse expert may be admissible.1  The Louisiana Supreme Court (and several courts of appeal) have concluded that a child’s hearsay statements should be admissible in child custody cases, PSVRA cases, and DAAA cases under the relaxed evidentiary standard of La. C.E. art. 1101.2

Note that not all statements made by children are hearsay. For example, if you are introducing the child’s statement to simply show that the child said something, rather than to show that what the child said was true, the statement would not be hearsay because it is not being offered for the truth of the matter asserted. An example of this would be a child calling his mother an obscene name that he has heard his abusive father call the mother.

• 1S.L.B. v. C.E.B., 2017-0978, pp. 24–26 (La. App. 4 Cir. 7/27/18), 252 So. 3d 950, 967–68 (affirming trial court’s admission of child’s audiotaped interview with doctor 4 days after injury where it was part of medical record in DAAA protective order hearing); G.N.S. v. S.B.S., 35,348, pp. 19–21 (La. App. 2 Cir. 9/28/01), 796 So. 2d 739, 750–51.
• 2For additional discussion, see Section 12.6.1.

The defendant may assert the Fifth Amendment privilege in a protective order hearing if there is a concurrent criminal prosecution. But his silence can be construed against him in a civil proceeding.1  And the existence of a pending criminal case does not constitute “good grounds” for a continuance.2  A petitioner’s constitutional right to a civil remedy prevails when weighed against a criminal defendant’s Fifth Amendment rights.3  So, it is not a violation of due process or the Fifth Amendment right against self-incrimination for a criminal defendant to have to defend a related civil proceeding.

Keep in mind that sometimes victims are wrongfully charged when poorly trained police respond to an incident of abuse. A common scenario in which this occurs is when the victim of abuse is trying to retrieve children from an abusive partner, and the police erroneously conclude your client is the aggressor or is not fearful because she has gone to his home. In cases like these, you may need to carefully consider any risks of client testimony. Although a finding in a protective order or hearing cannot be res judicata in a subsequent proceeding under La. R.S. 46:2134(E), any testimony given in civil court can be used against them in a criminal proceeding and for purposes of impeachment.

• 1See McCann v. McCann, 09-1341, pp. 7–8 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395 (applying adverse inference in a DAAA proceeding); Miles v. La. Landscape, 97-118, p. 4 (La. App. 5 Cir. 6/30/97), 697 So. 2d 348, 351.
• 2Malmay v. Sentry Ins. Co., 550 So. 2d 366, 369 (La. App. 3 Cir. 1989).
• 3Id.; Green v. Champion Ins. Co., 577 So. 2d 249, 262 (La. App. 1 Cir. 1991); Barbee v. Pigott, 398 So. 2d 137, 138 (La. App. 3 Cir. 1981); Bank of Com. & Tr. Co. v. Prejean, 262 So. 2d 798, 799 (La. App. 3 Cir. 1972).

Certified medical records may be admitted into evidence without a witness. La. R.S. 13:3714(A) governs the admission of medical records in Louisiana. That statute provides that a certified copy of a medical record shall be received in evidence as “prima facie proof” of its contents, upon the condition that the opposing party has the opportunity to summon the author as witness for cross-examination.1  Because medical records are considered inherently reliable, certification is the only requirement to lay a foundation of authenticity.

In domestic violence cases, medical records can present three common evidentiary issues that lawyers should plan for in advance: (1) notice to the opposing party, (2) hearsay within the medical record, and (3) statements made by your client that conflict with her testimony because she lied about the cause of her injuries. First, the notice requirement of this statute premises admissibility on fair notice to the other side. In non-emergency cases, this means attorneys should provide copies to opposing counsel of the records they intend to use far enough in advance of trial to allow for issuance of a subpoena.2  In emergency cases, notice is a trickier issue. Judges tend to admit certified medical records in emergency proceedings, but it is still a good idea to let opposing counsel know before the case begins that you will be introducing medical records. If opposing counsel nonetheless objects to the record’s admission on notice grounds, there is a strong argument to be made in favor of admitting the records. In emergency cases where a TRO has been issued, it is the defendant’s due process rights that require a quick hearing—to ensure that he is not subjected unfairly to an order of which he had no notice. If the defendant decides that he cannot fairly defend the case on such short notice, it is his right to request more time before being made to do so. If the defendant did not feel he could be prepared to meet the evidence, he could have requested more time to prepare. If he did not, even after being told that petitioner would introduce the records, that was a strategic decision. (Then, if necessary, indicate the extent to which you made efforts to comply with the notice requirement as best as possible).

The two other issues you should plan to deal with relate to the contents of the records. If there is hearsay within the document that you intend to admit as substantive evidence to prove the truth of matter asserted, you may need to argue other hearsay exceptions. To be clear about the rule, the statute allows the contents of the record to be taken as “prima facie proof.” But if, for example, there is a hearsay statement within the report, the report is simply prima facie proof that the statement was made, not of the truth of the statement. For that hearsay to be admitted as substantive proof, it must fall within a hearsay exception. Those exceptions will usually include statements in aid of medical treatment, excited utterance, and prior consistent statement. If medical records show your client attributing her injuries to a source other than abuse by her partner but provide good proof of the injuries, you should often seek to admit them anyway and prepare your client to testify about why she did not report the abuse to her doctor. In some cases, it is because the abusive partner accompanied her to the hospital or told her what to say. In other cases, it is attributable to shame or fear. Know why she told the doctor what she told them and make sense of it to the judge during her direct examination. Don’t forget to prepare your client for tough questioning on this in cross.

• 1La. R.S. 13:3714(A); see also Judd v. State, Dep’t of Transp. & Dev., 95-1052, pp. 9–10 (La. 11/27/95), 663 So. 2d 690, 696.
• 2Compare Perniciaro v. Hamed, 20-62, pp. 27–30 (La. App. 5 Cir. 12/16/20), 309 So. 3d 813, 834–36 (medical report that opposing counsel was unaware of until trial and for which no witness was called to authenticate was inadmissible under La. R.S. 13:3714(A)), with State ex rel. C.F., 52,741, pp. 13–14 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1265, 1273 (medical records admissible where certified by medical provider in court and opposing counsel had opportunity to subpoena author of records but decided not to).

Electronic evidence in the form of emails, text messages, Facebook posts, etc., present both opportunities and challenges for domestic violence litigation. Some of the best evidence of stalking and threats can be found in these sources. The mechanics of having them admitted into evidence can be tricky and require advance planning.

1. Text messages.
   • When possible, attorneys introducing text messages should have the cell phone with text messages available in court, but should present the evidence through either a printout of the messages or screenshots of them.1  You should rely on your client, not the abusive party, to lay the necessary foundation to authenticate them and to establish both the sender and the recipient of the communication. In general, you should ask your witness to identify the number and the name associated with that number, on the phone. The witness should testify how they know the number is associated with the other party (e.g., the parties had a history of text exchanges on those same numbers and the victim had previously received texts from the person on that number). In some cases, you may want to draw upon something in the substance of the exchange that is specific to the abusive party, such as a reference to something only he would know about, or the use of a nickname or other reference regularly used by the defendant (i.e., referring to a shared child by a nickname only the parties use).
   • Note that in addition to authenticating the substance/sender of the text messages as described above, you may also need to authenticate the photograph or printout of the text messages in the same manner as you would authenticate a photograph through testimony that the printout/photo fairly and accurately depicts the text messages as they appeared on the phone and has not been altered in any way.
2. Social Media Posts and Other Electronic Evidence.
   • Other forms of electronic evidence such as online videos, social media posts, or even surveillance videos must also be authenticated by a person familiar with the content and the people or places depicted. Louisiana courts have not drawn strict bright line rules for authentication of this type of evidence but have generally allowed the evidence where there is sufficient indication that the evidence is what you say it is.2

3. Evolving Technology

   • As “spoofing” and deepfakes of electronic have become more common, it is increasingly important that attorneys are well prepared to both authenticate and challenge the authenticity of electronic evidence. Practitioners should routinely update their knowledge on these issues as they evolve and utilize up to date resources that provide guidance.3

• 1Archaga v. Johnson, 19-85, p. 13 (La. App. 5 Cir. 10/16/19), 280 So. 3d 331, 341 (holding that texts and emails were properly authenticated when the sender’s name was on the printout and when witness testified to receiving the texts on her phone, screenshotting them, and printing them herself); see also State v. Haydin, 17-234, p. 12 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1293, 1301 (holding that a text message was properly authenticated when the witness testified to receiving it on their cell phone, saved the sender’s contact information in their phone, had previously communicated with the sender via phone, and was present when a picture of the text was taken).
• 2State v. Smith, 2015-1359, pp. 9–10 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836, 842 (applying the “reasonable juror” standard to authentication of social media posts, in which a party must provide enough evidence to support a finding that proffered evidence is what they say it is”); see also State v. Gray, 2016-1195, pp. 25, 30 (La. App. 4 Cir. 6/28/17), 2017 WL 3426021, at *13, *16 (holding that YouTube videos were sufficiently authenticated when witness testimony identified all three YouTube videos, identified the person in the videos, and identified the locations within the videos); State v. Groves, 2020-0450, p. 31-32 (La. App. 4 Cir. 6/10/21), 323 So. 3d 957, 977 (holding that Instagram videos and screenshots were authenticated/admissible when witness testimony identified the videos, screenshots, persons in the videos, when the videos were made, and how they were obtained); State v. Rice, 2017-0446, p. 3 (La. 6/29/17), 222 So. 3d 32, 33-34 (holding that authentication was sufficiently shown for surveillance video evidence when a witness testified that they personally maintained the surveillance system, personally knew the video, and explained how the video was created). But see State ex rel. J.H., 2022-0324, p. 13 (La. App. 4 Cir. 8/9/22), 2022 WL 3210100, at *6–7 (holding that video evidence was not properly authenticated when there was no testimony about the video’s accuracy and when chain of custody was not established).
• 3See generally Riana Pfefferkorn, ”Deepfakes” in the Courtroom, 29 B.U. Pub. Int. L.J. 245 (2020) (explains what deepfakes are, offers thoughts and guidance on how to challenge suspected deepfakes and defend against deepfake allegations, all from a POV that believes current rules of evidence will be sufficiently equipped to handle growing issue).

The admissibility of expert testimony is governed by La. C.E. art. 702. That article provides, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”1  Expert testimony can be used in a variety of ways in domestic violence cases. Topics for experts might include showing why a victim’s fear is rational by contextualizing the abuse, illuminating the effects of abuse on the victim or family dynamics, explaining the parenting deficits associated with domestic violence perpetrators, explaining the effects of domestic violence on children, explaining why a child might show fear of, or alignment with, an abusive parent, rebutting allegations of parental alienation, or educating the judge about strangulation, lethality, trauma, or memory.

In practice, many judges believe that testimony from experts with medical or doctorate degrees—such as psychiatrists or psychologists—should be given more weight than testimony from experts with less advanced degrees. But few professionals in these fields have received specialized training in intimate partner violence. Licensed clinical social workers and others working directly with survivors often have the most relevant expertise for cases involving intimate partner violence or child abuse, and they can be qualified as experts. The Post-Separation Family Violence Relief Act creates standards for demonstrative experience that can help practitioners overcome judicial bias that favors advanced degrees over substantive training and expertise. And in at least one Louisiana case, the defendant raised a Daubert challenge to testimony from a clinical social worker with a specialty in domestic violence intervention and prevention, and the Louisiana Fifth Circuit Court of Appeal upheld the trial court’s admission of the testimony.2

• 1La. C.E. art. 702(A)(1).
• 2McFall v. Armstrong, 14-1041, pp. 10–11 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 37–38; Duplessy v. Duplessy, 12-69, p. 5 (La. App. 5 Cir. 6/28/12), 102 So. 3d 209, 212.

Child custody cases under the PSFRVA present important relevance issues that must be raised by lawyers representing victims. Because the PSFVRA mandates specific outcomes once a determination of “family violence” is made, the “best interests” evidence normally considered in custody determinations is usually not relevant. The perpetrator may want to testify that he takes his kids to church every Sunday or coaches the soccer team, but that type of evidence has no bearing in a PSFVRA case. Lawyers should be diligent in objecting to that type of evidence so that it does not detract from the relevant abuse issues.