Understanding Motion Practice in Oklahoma Protective Order Cases
Okay, so last time we talked about what happens after the initial court appearance on PO’s. Next, we’re going to talk about motion practice on PO’s. This is something that not everybody does. I like to do motion practice on some PO’s for certain situations because it can be useful. I want to talk to you guys a little bit about that. My name is Brian L. Jackson. I’m a Tulsa father’s rights attorney here with Dads.Law. Our topic today is motion practice.
Motion practice basically just means you file motions with the court ahead of the trial and asking for certain types of relief. One of the key motions I’ve found some success with that can be a useful weapon with really weak PO’s is a demurrer. What a demurrer is, is it’s a fancy legal term that basically is a way of saying to the court, assume everything you’re saying is true, so what? It’s not material for a PO.
Where that’s useful is when you’re talking about, as I mentioned in previous videos, because PO’s are fact-pled, if you’re talking about a PO where they’re complaining about a bunch of stuff that doesn’t matter or where it’s very poorly drafted or where they’re alleging things that just aren’t PO material, then it gives you an opportunity to attack it on the face of the pleading and deny her the opportunity to go into a trial and try to sling shit at you.
The Importance of Choosing the Right Motion
As I mentioned in a previous video, this is a common tactic. You go into PO court and they’ll try to fling every little thing they can at you in the hopes that something sticks. They can go back into ancient history and they’ll try to, or they’ll try to bring up a bunch of shit that’s not in the pleadings. If you can avoid that trial and beat it on the face of the pleadings, you’re better off that way. It can’t always be done, but sometimes it can be done.
Typically where I’ve had the most success with this is when you’re talking about harassment and stalking allegations, because a lot of the things that people will say is harassment or they say it’s stalking, it’s not stalking because they don’t understand that the legal definition for the purposes of a protective order of those terms is not the same as what people think it means.
Common Motion Practices in PO Cases
For example, generally speaking, if you’re calling to talk to your children and she refuses to answer the phone and you call four times, generally speaking, that’s probably not going to legally be harassment, even though she may say she feels harassed. Why? Because you have a legitimate reason to call her, you’re trying to talk to your kids, who you have a right to talk to. Assuming there isn’t a court order that prohibits that, you have the right to talk to your kids. So if you’re calling to get a hold of the kids and she refuses to answer the friggin’ phone, well that’s a legitimate reason to call back. So that’s not harassment. But you will see from time to time where there are folks that will try to say it’s harassment and file the PO anyway. That’s probably demurrable.
Some other types of motions besides the demurrable, you may have a situation where you might be filing a motion to compel if they’re not cooperating with discovery. It’s theoretically possible to file summary judgment, like if you nail them down tightly enough in discovery that you can make it clear from what they said in discovery that they can’t make a case, then summary judgment would theoretically be available in a PO. That would be pursuant to the Marquette case that basically held that the PO court a civil court and any of the remedies that aren’t expressly proscribed under Title 22, any of the several procedures that are described under Title 12, which is the Oklahoma Civil Procedure Code, would be available.
Consult an Experienced Attorney for Effective Motion Practice
So in theory you could file summary judgment if you nail them down tight enough in discovery. But the reality is in most cases you’re probably not going to have that opportunity. My experience is they will typically say no, you did this, this, and this, and then there’s a factual dispute, and then summary judgment’s inappropriate. But that’s another example of motion practice.
Typically if they’re trying to introduce a bunch of crap that’s not admissible, you could theoretically file motions in limine, although since POs are tried to a judge, not a jury, there may not be a huge amount of benefit to that, and it’s a lot of work, and maybe you just go in and object and open court to it. There may be specific circumstances where the motion in limine is more appropriate, but that just depends on the circumstance on the ground.
Motions in limine are basically usually objections to trying to make certain types of arguments or introducing certain types of evidence. And generally speaking, that’s more something you would be looking at in like trials where there’s a jury involved. But it might be something that you could file, it would be theoretically available under Title 12, and in the right circumstances, you might use a motion in limine.
Contact Us for a Free Consultation
The big thing to be aware of with all of this when we’re talking motion practice is this is fairly high-level litigation tactics, and it requires somebody who knows what they’re doing, which is where you need a good lawyer. One place you can find a good protective order defense lawyer in Oklahoma is at Dads.Law, where fathers are not disposable.