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).