What To Do When… Episode 6: Protective Orders
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Intro 0:01
Welcome to What to do when a podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:29
Hey, guys, welcome to What To Do When… a Dummies Guide to the Legalverse.
Jackie Critzer 0:33
Real Talk, Real Lawyers. We appreciate you coming in and joining us for our podcast here at Critzer | Cardani in Richmond, Virginia. Today’s episode is really focused on protective orders. And they’re multifaceted. So we’re gonna probably play a little ping pong. But there’s many aspects Scott, don’t you think?
Scott Cardani 0:53
Yeah, I think most people don’t understand protective orders. And I think quite often they’re used wrongly. And sometimes they’re used against people. And you have to know really what you’re doing to really ferret through this.
Jackie Critzer 1:08
So when we’re talking about protective orders, there’s there’s people who are trying to get a protective order against someone else. And then there’s the person who’s through that, who they’re trying to get the protective order against. Right. So you’ve got to you’ve got to defend one and also you’ve got people who are trying to get a protective order.
Scott Cardani 1:26
Exactly. Why don’t we start there? Why would somebody want a protective order?
Jackie Critzer 1:31
Well, I mean, the the brass tacks of it is if there’s been violence force or threat, or family abuse, then a person can seek a protective order, which is an order just piece paper, quite frankly. But it’s an order of a court that says that the respondent, the person that you have alleged, you say that they’ve done some bad things to you, they can’t come within a certain feet of distance, they can’t call you contact, you send smoke signals. It’s a no contact order between the two people.
Scott Cardani 2:02
And this is really important. It’s a one way street. It was I always say to people, like whoever gets the protective order. It doesn’t matter what they do. This is all for the person who has the protective order against them.
Jackie Critzer 2:15
So I’m the I’m the I say, I’m the victim. And I say you’re the bad guy. And I go to court and I say, Scott, not a bad guy. Scott did bad things. He threatened me, he stalked me He fill in the blank. And I then the court says, Okay, here’s your protective order. We’re just gonna start preliminarily, that’s the protective order. What you’re saying is that I can contact you, but you can’t contact me.
Scott Cardani 2:44
That’s really how it works. And that’s really fair, it doesn’t, but it’s the way it works. And it’s really kind of scary, actually, for instance. And just real quick note, I have to actually be served with that protective order. So a sheriff has to give it to me, I have to have it in my hand before it’s effective. But once it’s effective, I am pretty much at risk. So for instance, if Jackie and I ended up at the same grocery store, even though I was there a half hour before her and my grocery bin is completely full. And I have to say so many feet away from her and she walks in that grocery store. It’s my obligation to leave I’ll even go a step further. Say Jackie decides to come over to my house, and I’m in my house in my recliner watching a movie and she walks in Guess who has to leave? Not her. I mean, as far as getting in trouble as far as the law goes, I would be the one breaking the court order,
Jackie Critzer 3:36
Even if I came to your house, or came to the park where you were or came to the grocery store?
Scott Cardani 3:41
And we talked about that. I think some judges would ferret that out. But the point is, that’s how draconian it is. The point is, that’s how much it’s against the one person and not the other. So I just wanted to make that clear.
Jackie Critzer 3:52
And so I’ve gone and obtained a protective order. Do I does that just do you get to say anything? How does that? I mean, how does that work?
Scott Cardani 4:01
Okay, there’s kind of three stages of protective order. There’s an emergency protective order. That usually happens when something bad has happened, like the police respond to violent acts, somebody was hurt somebody was something happened kind of immediate. Sometimes the police will get those involved. Sometimes people run to the magistrate, for instance, in the middle of the night because their boyfriend beat him up and get an emergency protective order. That’s a three day protective order. So when you get that and once that other person is served that orders in place, but it only lasts for three days, because the judge is going on the person’s one person’s testimony. One person statement actually. So what’s the next stage?
Jackie Critzer 4:41
Preliminary protective order who’s involved in a preliminary protective order?
Scott Cardani 4:45
Still, it’s kind of a one sided shot in you know, it’s that last for 15 days. And it’s still that person going before the court and saying, Hey, I need a protective order. They explain why and what’s the magic words you have to say that you’re in fear or you You’ve been harmed or the threat of you being harmed is enough for that judge to say, Yeah, I believe you need a protective order.
Jackie Critzer 5:05
What if they’re not telling the truth? What if I have gone to the court, and I have told the court that you chased me around this office with a knife when you weren’t even here?
Scott Cardani 5:16
And that’s really where this stuff becomes really sketchy to me. Because I’ve done a lot of defense, as well as getting protective orders. People lie all the time. The problem is that protective order will stay in place, once you’re served until the next court date, which they said 15 days from that day, it’s at that date, when they try to get a permanent protective order is called that everything begins to be a trial where two sides get to tell their story.
Jackie Critzer 5:44
So basically, the third time I go to court first time I’ve gone because the police came, but they didn’t believe me.
Scott Cardani 5:52
Right and go to court, you probably want to do a magistrate or a probably got through a match. Okay? It’s likely but…
Jackie Critzer 5:56
Then they set the court, somebody sets it for a few days later, three days later. And then I go to tell the judge that I need it longer than the judge gives me another couple of weeks, and then I go the next time and then you’re going to be there that time. Yep. Now, our lawyers involved in that, do you?
Scott Cardani 6:15
Well, this is an area, kind of like we talked about the other day, when we were talking about reckless driving. This is an area where you definitely need a lawyer. Most people think they can just go I’m gonna go tell the truth. And it’ll all be alright. Well, not really.
Jackie Critzer 6:27
Well, when you are defending when you’re on the side of someone that would be in your shoes in my hypothetical, how do you prepare them? What do you mean? What do you bring to the table for someone who’s been accused of being the bad person?
Scott Cardani 6:41
Well, this is really important. And I think that’s why you and I do what we do. You know, there’s, you have to sit down with this person and go through the facts and details, and really ferret out what happened, use that word ferrot a lot. I don’t even have a ferrot. But using that, really, we have to construct a defense that matches your facts and circumstances.So many times when people go to court, they have no idea. The lawyer shows up, he doesn’t really know what’s going on. He’s just trying to hold on to this fact that there wasn’t really a threat. There wasn’t really a force. There wasn’t really this but without constructing in doing the work, and really looking into the facts and circumstances. And sometimes, unfortunately, nobody was there. For instance, like you said, you said that ran around the office trying to stab you with a knife. And I was in Tahiti, I have no facts and circumstances other than what, here’s my plane ticket. Here’s my hotel reservation, here’s a credit card receipt just said I wasn’t even there.
Jackie Critzer 7:33
My pictures when I was on the beach that day.
Scott Cardani 7:36
Maybe so – you know, with social media and things like that, it’s kind of easier to date things, although that can be fraudulently dealt with to. I mean, anything can be fixed anymore. But my point is, we strive to come up with a defense in that case, that will fit in. So when we go to the court into the court, and the judge asked us what happened in our side, we tell a story. And that story may be as simple as I was in Tahiti judge, here’s my proof. Or it may be the I was there. And this is what happened. Details matter. So when we prepare somebody or we talk to somebody, actually, I don’t like preparing witnesses for that reason. I’ll explain. If I sit down with you too much, and I go through everything that happened and you get this rote memory. When you go into court, you sound like a robot. You don’t sound authentic, you’re worried about what you say you’re thinking about, oh, did I say that? Right. And a lot of times it comes off disingenuous when you have the most genuine part to play. So we have to go through the story and let you tell the story in a way that the judge is going to hear it from you the way you intended, not memorize not coached, but just this is what happened not that we can’t help you walk through what you need to say. But it gets to coach I think people lose it. And I see a lot of attorneys, coaching their client to almost a script. And even though they may be in the right, it’s not it doesn’t help.
Jackie Critzer 9:01
So sometimes we, of course, Hear hear people say, Well, do I really need a lawyer for that? Or you might be able to google how to handle a protective order hearing. So this question really is two-fold. Do you really need a lawyer? And what consequences could there be? If you are found having been? I guess, if you’re found to have really done the thing that put this person in fear of bodily injury,
Scott Cardani 9:29
It’s so important not only to get a lawyer, but get the right lawyer. I mean, it’s just, it just is, you know, you can have a lawyer who’s never handled a protective order case. And, you know, we need to talk about the consequence of a protective order. But it’s so important to get the right lawyer who has experience in this and I realized that you know, your young lawyer, you gotta get experience somehow. If he’s in a firm with a lot of experience that’s pretty good because then he’s gonna get training but you don’t want to hurt him. PI, hire somebody else to do personal injuries with me? Yes. You don’t want to hire somebody the wrong person, because you need a lawyer, you need somebody in there for you.
Jackie Critzer 10:11
Is it a crime, though, is it I mean, if if I get a protective order against you that that’s not criminal, right?
Scott Cardani 10:17
It sure isn’t, but I’ve become in a prison, I have to give up my gun rights. I can’t possess a gun, I would lose my concealed carry permit. I’m being watched at that point. And then all the world is on my actions. And again, I have to prove every time you come near me that I didn’t come here you in a violation is an automatic one day in jail.
Jackie Critzer 10:39
So what happens if we share children together?
Scott Cardani 10:43
That’s why you go to court and explain all that, and you try to get something for the judge to give some kind of relief. And that way you can call grandma. Because as you said, you can’t even I can’t text Joe to text you, that’s communication with you. Unless the Court order says I can text Joe to text you to get our children. So it’s got to be very specific. But that’s really important. We, together have done 1000s of both getting protective orders, and getting rid of protective orders. So it’s really important to know the nuance, and one question I wanted to ask you briefly is, what do they need to get a protective order? Let’s tell you the other way. I just got beat up by my wife. She’s a little bigger than me. And not really. But my point is, she does beat me. Even if it isn’t bigger than her. Maybe she hit you with a baseball bat when you walk in the door because she’s angry, and you’re scared in the middle of night, she’s gonna do something to hurt you. She’s just proved that, you know, and that stuff happens, you know, or you’ve been in fear for years of her behaviors, and, you know, whatever. It may have escalated, escalated. So how do I come to you, Jackie, what’s the, you know, how can you help me? You?
Jackie Critzer 11:54
It’s really, it’s so much of what you said, which is every case is so very dependent on the facts, especially on a protective order. And if I’m helping you obtain a protective order, I need to know not only what happened this particular like what brought you here today? What was the event that said, I know I need to talk to somebody, we’re going to talk about that event. But we’re going to talk about six month history a year history, we’re going to see if there were things that sort of led you to this fear to begin with. Why does that matter? Sometimes you have a situation where it was a one time thing, everything was roses, and Valentine cards and everything great. And then all of a sudden this one time, the person did something so out of character, but it was very scary. That happens. But more often than not, there’s a buildup, and the history and the story is how I help you get the protective order to to protect you.
Scott Cardani 12:48
And most people don’t even know what the story was until we start talking to them. It’s almost revelation, it’s almost like, okay, oh, I didn’t think about that. That didn’t seem like that. That didn’t seem like a step. Well, sometimes
Jackie Critzer 12:59
we hear I think you’d agree sometimes you hear a situation from someone tried to get a protective order, and you think, but that doesn’t seem scary. So what else was going on? And so there are triggers. But we know that because of our experience and and less experienced attorney in protective orders, and also a less expensive, less experienced attorney and in really family law matters, may not have those skills to draw out the story that’s going to help you get the protective order.
Scott Cardani 13:28
Absolutely. And sometimes, yes. So you know, sometimes it is really simple. Sometimes it’s as much as you were in Barbados, and there’s nothing else really to prove. And I know that and I’m going to tell you that and we’re gonna go in and just handle that really fast. Or sometimes it’s as easy as I have a three inch cut off my head, you know, and he was in the house and he hit me and he’s got a criminal charge now and he’s going to jail. It’s sometimes that easy, but sometimes it takes a lot of effort, and a lot of work. But the bottom line is, it’s the old saying go don’t go to a gunfight with a knife. Well, if
Jackie Critzer 14:02
he’s going to jail doesn’t what that seems like that I wouldn’t have to help my person put on their case,
Scott Cardani 14:09
normally as part of the bond hearing, is I do some criminal law, a lot of criminal law. But normally as part of the bond hearing, he’s going to have a stay away kind of no contact order, which is sort of a protective order has little more teeth because if they violate they’re going back to jail. So there’s some usually conditions there even if, you know, they just got arrested normally, there’s some kind of provision in letting them out while pending trial that they can’t contact you. So that’s usually there. You’re right. But sometimes those things don’t address everything because a protective order address, who’s going to pay the bills, where the custody of the children are all those kind of extra things in America context. Now if it’s just a civil contact, where Jackie’s my neighbor, and she’s threatening me and I need to because she threatens No, just kidding. But if that’s Jackie and me that’s a little different. There’s a lot less stuff Between us, there’s no shared bill, no shared bills, no kids, no things that we have to see each other. And I could care less if Jackie has to move into her mom’s house, even though she lives in the house next door, and the judge says she has a 500 feet away, well, 500 feet, and got to work there, because she lives 200 feet away from me when I was in the Senate routes
Jackie Critzer 15:19
Are the consequences of a protective order the same from a legal perspective, whether it’s a spouse or close family member, or, you know, former boyfriend, girlfriend, versus the neighbor or the you know, the co worker?
Scott Cardani 15:32
It’s kind of all the same. I mean, when it works out, once you get a protective order, it’s a protective order, you have to follow exactly what that protective order is, you lose so many of your constitutional rights, and that’s the biggest issue, you become almost guilty till proven innocent instead of innocent until proven guilty. So you The burden is always on you. And you know, and we see it all too. I mean, I, when I started in practice, I did a lot of these in very difficult areas. And what would happen a lot of times is the guy would be in jail, get out of jail, and the very person who had the protective order against him would pick them up, would text them, call them as soon as they answered, that might go on for a day or two until, again, that guy was on the hot seat or something, he did something wrong. And then she say, Oh, you violated protective order. Here’s the proof. And you’re going to court, they will judge she contact him first. And there’s like, I don’t care. It’s a one way street. So so important to understand that. Just because she texted you or he texted you or he called you or he came by the house doesn’t change the protective order. It doesn’t change. She’s not going to get in trouble. You are? Yeah, have to know that.
Jackie Critzer 16:38
Richt – So what happens when you have a criminal case pending? Maybe it was a string the knife case? Right? I say you’ve chased me around and now you’ve received a summons you’ve been cited for? I don’t know what that would be. You would know.
Scott Cardani 16:55
How about attempted murder? Okay, attempted murder, we’ll go big.
Jackie Critzer 16:58
Yeah, it was a big knife. And I was really scared. And but for, you know, you tripping over the box, you know, you would have killed me, let’s say.
Scott Cardani 17:07
Remember you had the knife on me. I was being chased by you, let’s get this straight.
Jackie Critzer 17:12
So, if there’s a protective order hearing and a criminal hearing, pending, they’re both pending? Is there is it? Should you go to both? I mean, what how do you do you strategize on that?
Scott Cardani 17:24
Usually the Commonwealth attorney is going to handle all the criminal part of it. So they have a office victim witness that will help you. We’ll all coordinate together usually in that respect. So I probably wouldn’t go to the criminal side with you. I mean, obviously, I could go if you need it. But I don’t know that I offer much there because it’s already going to be kind of taken care of. Sometimes I can do that with a phone call, call the common attorney and say, hey, look, this is really serious. We’re really scared. I want some protection for my client, make sure they’re going to be doing that anyways, but it’s good for them to hear your side, so to speak.
Jackie Critzer 17:56
I have gotten to the criminal hearings with the with the victims and participated from just sitting in the seat. There’s nothing I can do. But you’re right. I’ve met with the Commonwealth’s attorney, I’ve met with victim witness and also our client, and just prepared them. Because the information that is in the criminal hearing, of course, applies to the protective order hearing. Sometimes we want a court reporter there because we we but what happens when it’s the other way around what happens when you got a protective order hearing? First, this 15 days have passed because the criminal hearings not going to be scheduled that quick.
Scott Cardani 18:26
You’re talking if I’m the one who has the protective order, I’m the one accused of chasing you around, which never happened, right? Of course not. So anyways, yeah, this is very, very important. Again, Experience matters here because some guys would say go ahead and do the protective order, and get that off, and then only have to as a criminal Well remember, anything you say, can and will be used against you in the court of law. What that means is he never want to say something in a civil trial before a criminal trial ever. And most of the time, to be honest, I’ve been doing this a long time. Rarely does it matter. But on the small infantile chance that you’re gonna say something that predictable to hearing that makes you guilty in a criminal hearing, you need to be quiet, get the criminal out of the way.
Jackie Critzer 19:08
So I have seen what I thought was a seasoned attorney show up to a protective order hearing, I represented the victim. She was trying to get the protective order made permanent. And the seasoned attorney was also his criminal defense attorney. And he wanted to move forward with a protective order with this. I think it was a strangulation case. I mean, it was heavy duty. And while I didn’t want to do his job for him, I didn’t say to him, Are you sure you want to move forward today? And he sort of looked at me a little cross eyed and I said what do you want to do and it sort of set off some alarm bells but like you’re saying the experience matters and paying attention to the details matters and and who you hire to represent you on either side. really does matter.
Scott Cardani 19:56
Yeah. And the last thing I’ll say I think we probably need to close this up. But, the last thing I’ll say is this, why it’s so important. Jackie, and I understand even if we accompany you to the criminal trial, and you were just handling your civil, we may be able to negotiate the best deal for you at that point, based on your kids based on your family structure, and all those things based on the Commonwealth, and you’re gonna have a defense attorney there representing him, most likely. They may want him out of jail, for instance. So it works well, we can agree to let him out of jail as long as this this this are in place. So there’s so much we can do in certain circumstances. And the good thing about Jackie, now we’re going to be honest with you, there’s really nothing we can do at this hearing. And we’re not gonna go Oh, but even if our only purpose is to bring peace to you, we’re willing to do that that’s not an issue for us. That’s our job. But we’ll be honest with you and practical and say, Hey, this is what we believe we can do at this hearing. This is what we can’t. And I think being honest, being practical. Being upfront is so important in these cases. And you know, if somebody comes in ask for a protective order, and I don’t think they can get one, I’m going to tell them that. Sure. You know, I think it’s so important because so many people spent a lot of money running around the courthouses never getting anything because they weren’t given the right advice up front. You don’t have a protective order case. Right. And a lot of people quite frankly, use this to get the upper hand. Talk about that. And we’ll close after that.
Jackie Critzer 21:20
Well, I was just gonna say that, that we have several podcasts that are tied very closely to protect borders, what to do when there’s a divorce that involves a protective order what to do when maybe you’re never married, but there is a custody situation. And there’s a protective order involved. So we have several podcasts that will touch on protective orders, touch on protective orders that that will expand greatly on protective orders in general. But I think where we are now is is a great place to wrap up.
Scott Cardani 21:49
Thanks, guys for listening.
Intro 21:51
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