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The Unfairness of Emergencies

On Behalf of | Oct 23, 2020 | Child Custody, Criminal Defense, Divorce, Injuries & Damages

Why the Emergency Process Is Unfair

Lawyers and judges all know that it is improper for one side to meet with the judge without the other side being present. Lawyers are not supposed to communicate “ex parte” (this means “one-sided) with judges unless the communication is authorized by law or a court order. Likewise, judges are not supposed to initiate, permit, or consider ex parte communications, with limited exceptions.

One of the exceptions for lawyers and judges to communicate ex parte, or with only one side present, is in the case of an emergency. There are several types of “emergency” situations where one side may meet with the judge and ask for a court order:

  • Civil temporary restraining orders. The side meeting with the judge must have a sworn statement showing that immediate and irreparable damage will result if the restraining order is not granted. If the judge grants the order, the judge is required to set the matter for hearing for the other side to be able to appear and be heard “at the earliest possible time.”
  • Protective orders. The side meeting with the judge may ask for an order the same day they file their petition, and the judge may grant an order without any notice to the other side if the judge finds that an order is necessary to protect the victim from immediate and present danger of domestic abuse, stalking or harassment. The judge is required to give the other side a hearing within 14 days.
  • Divorce restraining orders. The side meeting with the judge must have a sworn statement showing that they will suffer irreparable harm or a child will suffer irreparable harm. If the judge finds that irreparable harm is likely, the judge may issue a temporary restraining order. If a temporary restraining order is issued, The judge is required to set a temporpary order hearing within 10 days.
  • Emergency child custody orders. A motion for an emergency custody heairng must have an independent report or a sworn statement from an eyewitness that the child is in surroundings which endanger the child’s safety and that if the conditions continue, the child would likely be subject to irreparable harm. There is nothing said in the emergency custody statute about notice to the other side or about when the other side is entitled to a hearing.

Even though these situations are supposed to be limited and supported by sworn statements, every day in Oklahoma people file false or exaggerated motions to try to gain leverage in their divorce or child custody case. When someone makes a false or exaggerated statement to obtain an emergency order, two bad things happen:

  1. One side is unfairly harmed by their inability to be present and present their side of the case, and
  2. It’s harder for people who have real emergencies to obtain emergency orders, because judges can be very skeptical due to other people’s false claims

Most of us know that it is improper and unfair for one side to a lawsuit to meet with a judge without the other side there. There are two sides to every story, right? But if it’s that simple, why can’t any improper communication be corrected by letting the other side come in a few days later to the judge tell their side? There are two major reasons that the damage from an unfair one-sided communication can’t be corrected simply by giving the other side a chance to speak and be heard later:

The Way Our System Works

Our judicial system is an “adversary system.” The philosophy behind our system is that the truth will emerge from the courtroom clash between two adverse perspectives. At any trial in our adversary system, each side is expected to make its best case using the most favorable evidence that it has, organizing and presenting that evidence in the most persuasive way possible to obtain a favorable outcome. Neither side is required to offer bad evidence or negative information in its case. Our adversary system relies on the competitive nature of the proceeding for each side to demonstrate important facts omitted by the opponent through cross-examination and through its own witnesses. This means that one side acting alone can and likely will omit important facts (context, facts that would hurt their case, mitigating facts, facts that would help the other side) as well as “spin” the facts that they choose to present by selectively choosing the order and context for the information. This is why one-sided communications are inherently unreliable. When only one side meets with the judge, it’s not that they’re telling only one side of the story. It’s worse than that: they are only telling part of one side of the story. When one side to a case is present and the opposing side is absent, only a fraction, the very best, most favorable part of the appearing side’s story is heard, unchallenged and untested, and the system completely fails.

Once a Bias is Created, It’s Almost Impossible To Correct

Thinking, Fast and Slow is an award-winning 2011 publication of the results of decades of work by psychologist Dr. Daniel Kahneman, who studied human judgment and decision-making. His book examines how the human brain makes decisions, and it shows through dozens of studies and examples that: 1. All humans are poor decision-makers, and 2. We’re blind to part 1. We think we’re good decision-makers. The work of psychologists like Dr. Kahneman tells us that our brains are susceptible to influence and manipulation. We’ve all heard the idea that making a good first impression is very important. Science shows us why it is important, because first impressions are extremely long-lasting and almost impossible to erase. First impressions have been shown to last for months and affect human judgments even when contradictory facts are later learned. First impressions resonate for a long time in both explicit reactions and in subtle inferences. First impressions influence how information received later is perceived and interpreted. Judges are human beings. Unfair, one-sided communications permanently create first impression bias and destroy the long-term decision-making ability of the judge. Even when later on the other side is given the opportunity to be heard, the corrosive impact of an unfair one-sided meeting with the judge cannot be undone. It’s too late.

How We Can Help

One powerful way to counter slanted, exaggerated or false allegations is through cross-examination. Cross-examination means your lawyer gets to prove facts through the other side. Our attorneys spend a great deal of time and money every year working on this important skill set. Most people recognize that their testimony and evidence may be viewed as “self-serving.” This risk goes away when the other side, the opposing party who is against you, is admitting facts that help your case. The value that we add with cross-examination comes from our work on that skill set and our cross-training with plaintiff’s lawyers, criminal defense lawyers, family lawyers, and experts. Few attorneys have even heard of the training we do, and of the few who have heard of it, almost none of them are willing to spend the time necessary to acquire the skill set.