One sub-area of my family law practice is domestic violence cases. Domestic violence cases are generally handled by family law attorneys or criminal law attorneys. I like to think I have some advantage here, as I am a family law attorney but I also have served as municipal prosecutor or municipal prosecutor in a dozen or so towns over the years. That means I am comfortable with family law, which is particularly important in domestic violence cases involving children, but I am also comfortable with prosecuting a case or defending a case from a criminal court point of view.
Directed Verdicts and Domestic Violence
As the ‘predicate acts’ in domestic violence are basically the same as the underlying actions, this comes in handy. The experience prosecuting such cases in our state’s municipal courts is helpful when I am representing the plaintiff in domestic violence actions. But for today’s blog post, I really wanted to focus on the somewhat underutilized motion for directed verdict. I recently won a motion for directed verdict* while defending a domestic violence matter for a defendant, and it reminded me of how powerful a tool this is in the defense arsenal.
Motions for Directed Verdict
During a domestic violence trial, the plaintiff/alleged victim will present their case first. They will have the burden of proof that what they are alleging is more likely than not (i.e. a preponderance of the evidence) to have occurred. They generally must prove that there was a predicate act of domestic violence, the judge will review any past history of alleged domestic violence to help frame the present allegations, and under the case Silver v. Silver they will need to demonstrate a future risk of harm. These elements must all be met to win the case.
Once the Plaintiff has rested their case, it is incumbent upon the Defendant or their attorney to raise an oral motion for Directed Verdict. Essentially, you are arguing that the defense should not even need to put on a case as Plaintiff, who has the burden of proof, has failed to meet their burden.
The standard the judge will use at this point in time is to provide “all positive inferences” to the Plaintiff and withhold all findings of credibility. In other words, if the plaintiff says the defendant stalked them, even if that seemed unlikely to be true during cross examination, it will be assumed as true for the purposes of deciding this motion. Said yet another way, the Plaintiff’s case has to be very weak for the Motion to be successful.
Motion for Directed Verdict – Positive Outcome
And yet, in a certain percentage of cases the Motion for Directed Verdict will be granted. That means the defendant won the case, without even having to present their side of it. This equals decreased legal fees, decreased risk of presenting your case, and keeping your record clean for any testimony that may be used in other cases, such as connected criminal matters. And here’s another benefit: a savvy defense attorney can use their Motion for Directed Verdict argument to poke holes in Plaintiff’s case that may stick with the Judge when the case is ultimately decided, assuming the Motion is denied, at the end of Defendant’s case.
Conclusion
A Motion for Directed Verdict may be infrequently granted; I would say I’ve been successful with this somewhere between 5%-10% throughout my career, but should be considered in every domestic violence case. Whether granted or not, it is a powerful tool in the defense arsenal in domestic violence matters.
*Prior results are no guarantee of future results. Each case is separate and must be decided on its own unique facts and application of the law to those facts.
