8. Show Cause Hearing

Certified Legal Interns may represent the client in court (with the assistance of a supervising attorney). A volunteer may become certified if s/he has completed half of his/her law school credits, including Legal Professions. Application forms to become certified are available in Dean Fromm’s office. If the volunteer is not certified, the volunteer attorney will represent the client in open court. In any case, students are expected to attend all hearings which involve their client.

The protective order hearing is designed to determine whether the permanent protective order should be issued. If the judge is satisfied by the evidence that the order should be made permanent, then he/she will sign the Permanent Protective Order. The Petitioner must prove at least one of the allegations in the petition by a preponderance of the evidence. At the show cause hearing, the volunteer attorney (or certified student) will conduct direct and cross examination of the Petitioner, Respondent, and witnesses, and may have to negotiate the terms of the protective order with opposing counsel.

In most instances your volunteer attorney will give little guidance in preparing for the hearing. Be sure to get certified copies of any police records and/or medical records. You will need the client to sign a release form (located on the desk in the POP office) to obtain medical records. Police records can only be obtained by the client or by subpoena. (Subpoenas may be obtained from the clerk’s office.) Other forms of evidence may include photographs showing any injuries. You may also wish to subpoena witnesses. Friends of the Petitioner may not need subpoenas (although it’s always good to be on the safe side), but police, social workers, etc. always do.

Remember to bring copies of the Permanent Protective Order with you to the hearing for the judge to sign. In cases where child support and visitation are at issue, it may be difficult to predict what the judge will order. In that case, in addition to the proposed order, you may want to bring copies of orders with blanks for the judge to fill in. Alternatively, the judge may draft the order or ask you to do so and return it as soon as possible.

Remember to bring a copy of this manual with you to the hearing.

If you are nervous about the hearing, remember your client is probably ten times so. You should prepare your client for what is to come. The volunteer attorney will conduct a direct examination of the client and any witnesses for the client. The Respondent or the Respondent’s attorney will have the opportunity to cross examine the client and other witnesses. Then the Respondent and any witnesses for the Respondent will have an opportunity to testify and will be cross examined by the volunteer attorney. Hearings are conducted with varying levels of formality. Sometimes, the attorneys and parties are simply asked to approach the judge’s bench, where they stand and present their cases. Questioning may be done at the bench, from the counsels’ tables, or the Petitioner may be asked to sit in the witness box.

It is a good idea to review the petition with the client immediately before the hearing. In addition, the Petitioner and other witnesses should be instructed to:

1. Meet the attorney a half-hour to an hour before the hearing. This will give the attorney an opportunity to familiarize him/herself with the evidence (if they have not already done so) and give the client an opportunity to become comfortable with the attorney (if they have not already met).
2. Dress in appropriate attire for the occasion. Dress as you would for a business meeting. Avoid flashy or provocative clothing. Avoid, if possible, jeans, shorts, short skirts, or t-shirts with writing on them.
3. When testifying, listen carefully to the questions asked. You may want to repeat the question to yourself silently before answering
4. Answer questions fully, but succinctly. Two or three sentence answers are generally adequate.
5. Always answer verbally so your answer can be recorded. Say "yes" and "no," rather than nodding and shaking your head.
6. Listen very closely to the questions asked by opposing counsel and answer succinctly and politely. Never argue. Stay calm and do not loose your temper.
7. Be respectful to the judge. Never interrupt the judge.
8. Tell the whole truth.

You will also need to emotionally prepare the client. The Petitioner will see the Respondent and have to be in the same room with him/her. In addition, the Respondent will have the opportunity to respond to the allegations. This can be traumatic for many clients. It may be a good idea to remove the client to another room while you wait for the hearing to begin to avoid unnecessary contact with the Respondent. Oftentimes, clients may find the very presence of the Respondent threatening.

In addition, give the client encouragement. Tell them that most protective orders are granted. Middleway House advocates can attend the hearing to lend emotional support to the client if they are given sufficient advance notice. This is an especially good idea in cases where the client was referred from Middleway.

Most victims of domestic violence have had little or no experience with the legal system. They are frightened, distrusting, and feel they will be discounted and ignored. It is important to recognize many of their reactions and responses are the result of these feelings. Common courtroom behaviors of domestic violence victims include:

• A reluctance to testify
• Distorted judgment
• Repression of memories of traumatic events
• Believe batterer's promise to change
• Assume responsibility for batterer's violence
• Feels unsafe, distrust of system
• Minimize or deny substance use/abuse of self or batterer
• Masks injuries
• Sincere feelings for batterer

The hearing may take from five minutes to over an hour. Note also that the courts often run half an hour or more behind schedule, but sometimes they are on time, so don’t count on it. The point is, be prepared to wait. Failure to attend will result in dismissal.

NOTE: As tempting as it may be in some cases, the judge is prohibited from issuing a mutual protective order. If the Respondent wants to obtain a protective order, s/he must file a separate petition and prove his/her allegations. See IC 34-26-2-10. There are a number of problems with mutual protective orders, in addition to being explicitly forbidden by statute. These include:

• Lack of due process. The Petitioner is entitled to timely notice of the Respondent’s allegations and an opportunity to prepare to respond to those allegations.
• Lack of evidence. To obtain a protective order, a Petitioner must have been abused by another person. In addition, allegations of abuse must be proven by a preponderance of the evidence. A Respondent making an oral request may not meet these requirements.
• Lack of jurisdiction. The court may lack jurisdiction to grant a mutual protective order if no counter-petition has been filed and there has been no service of process.
• Complicates the jobs of prosecutors and family courts. Victims may not appear credible as witnesses if there has been a protective order issued against them. They can also create a negative presumption against the Petitioner in subsequent custody and divorce proceedings. Avoid thinking that a protective order against the Petitioner is inconsequential because the Petitioner has a protective order against the Respondent.
• Complicates the job of police and makes the Petitioner afraid to call the police. Since mutual protective orders create the appearance that both parties were violent, the police may either not enforce the order or may arrest both parties. The Petitioner may not report violations of the order for fear of being arrested. A mutual protective order can be used as a tool by barterers to continue to abuse the client.
• Makes the Petitioner feel responsible for the violence. Making the victim feel responsible for the violence perpetuates the cycle of violence.

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