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Getting Your Day in Court

Posted by Joshua J. Lax | Nov 07, 2023 | 0 Comments

Today, I want to discuss a recent experience I had representing a client in a civil domestic violence case in New Jersey. In a nutshell, the client went to pick her son up from her ex-boyfriend (and the child's father) at a playground. The ex-boyfriend shoved the client while she held the child after an argument over whether the ex-boyfriend could take the child's shoes leaving his son barefoot. Thankfully, neither the client nor the child was physically injured. This was the first instance where the ex-boyfriend used violence, but nonetheless, the client wanted to insure this would be his last.

The client started a civil domestic violence case in New Jersey Family Court. For context, civil domestic violence proceedings are meant to be quick, in some cases lasting less than two weeks from start to finish. If the parties don't settle, the Court holds a bench trial (no jury) about whether the court will issue a final restraining order against the defendant. Like many civil cases, a number these cases are settled in what are referred to as a civil restraint. The civil restraint has less consequences for a defendant than if they are found have violated the domestic violence laws, including having to be fingerprinted, entered in the domestic violence registry, and prohibited from owning a firearm, in addition to other consequences like having child custody modified, attending court-ordered classes, and paying penalties, damages, and attorney's fees. Civil restraint orders help the defendant avoid these consequences while offering the plaintiff or victim protection. 

Before I became involved in this case, there was, unsurprisingly, a history between the client and her ex. After they broke-up, they went through a child custody proceeding. Both were represented by lawyers in that case. My client felt that she had given a lot of ground, in part because of the ex's attorney's tactics. After the custody order was entered, the defendant was consistently difficult to deal with, at times wholly unreliable, and at times he fully disobeyed the custody order. When the domestic violence case started, the ex hired the same lawyer.

In between our first court appearance by Zoom and the trial scheduled a week later, we started negotiating a civil restraint. Without us asking, the ex offered to take pre-recorded online parenting and anger management classes. Afraid that this guy would spend the whole class playing video games on his couch while the class played in the background, we said he needed to do in person classes. When we arrived in court on a Monday afternoon to do our trial, the defendant agreed to do in-person classes, and we reached an agreement on some other issues. Because we had an agreement in principal, the judge let us have until Friday to prepare a civil restraint order. Although objectively it was a good settlement to which the client agreed, I perceived that in some way the client had hoped the ex would receive a greater reckoning for his behavior.

On Wednesday, I wrote up a proposed order and sent it to the defendant's lawyer. About twenty minutes after I hit send on the e-mail, the attorney told me that there were no in-person classes available in the area. Not only was this proven false in about ten minutes with the aid of  Google, the attorney was now backtracking on a material term which we had already agreed upon. The ex and his lawyer had used this tactic to exact bigger concessions during the child custody proceedings knowing the expense involved in going through hearings in court.

If this was their calculation here, they picked the wrong case, the wrong plaintiff, and if I may be self-indulgent, the wrong lawyer. We showed up for Court that Friday, and within minutes, the client was on the stand recounting the ex's behavior to the judge. Two-thirds of the way through the client's direct examination we were told we would have to come back the next Wednesday to finish the trial. We never made it back to Court. On the following Monday afternoon, I received a call from the defendant's attorney. She apologized to me, and ultimately agreed to all the terms in our proposed civil restraint order, even those she and the ex previously refused.

I often tell my law students that even a "small" case is important to the people involved in it, a point that is often made in the conclusion of federal jury instructions. Even though the client was not injured, this situation had immense importance for her. When we reached the original tentative settlement agreement, my sense is that she felt that this situation was going the same way as all the other issues with her ex. When they back tracked on the classes, the client and I had a renewed purpose to show this guy she wouldn't accept his behavior. Having told the Judge what happened, with him sitting there, she had agency. Even though the case ultimately settled, she was able to make her point. She got both the reckoning with the ex-boyfriend she wanted, and the terms that will hopefully improve the dynamics of their relationship in the future.

About the Author

Joshua J. Lax

Joshua J. Lax is the head of the firm's Government Affairs and Defense Practice. Joshua combines his extensive experience in criminal and civil cases, including almost forty trials, to assist his clients present the best case possible. Joshua's work with hundreds of witnesses has given him the ty...


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