Ryan Bauerle | Insider Advice on the TRO

I’m excited to welcome my guest, Ryan Bauerle of Goranson Bain Ausley, PLLC to the Texas Family Law Insiders podcast today.

Ryan is Board Certified by the Texas Board of Legal Specialization in Family Law, and serves as Chair of the Family Law Committee and Liaison to the Section of Family Law of the American Bar Association Young Lawyers Division, and was elected as Director of District 4 by the Texas Young Lawyers Association. He serves in multiple capacities for State and Local Bar Associations.

Ryan is sitting down with us today to walk us through everything we need to know about temporary restraining orders. Listen to learn:   

  • What is the legal standard for obtaining a TRO and what criteria should you look for when making a decision to seek one
  • What are the differences between a protection order and a TRO and what are the limits of a TRO
  • Tips for preparing your client to testify, no matter which side of the TRO they are on
  • 5 tools to present things effectively so that you can speed up your case
  • And more 

Plus, Ryan’s best advice for attorneys, including great ideas for giving a hand up and a hand out to people making their way up.

Mentioned in this episode:


Ryan Bauerle: You need to be preparing your client for this hearing at the same time as you’re seeking a TRO in the first place. You need to make sure that your client can substantiate each and every significant fact that they put in their affidavit because they need to know that the attorney on the other side is going to do their best to pick each and every one of them apart under probably whatever time constraint you have.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Ryan Bauerle to the Texas Family Law Insiders podcast. Ryan is a partner at Goranson Bain Ausley in their Plano office where his practice includes divorce, child custody, adoption, complex property divisions, pre and post marital agreements, as well as high conflict and collaborative cases. Ryan is board certified in family law. He’s been named a “Rising Star” by SuperLawyers Magazine and to the Best Lawyers: Ones to Watch list for several years. Ryan serves in multiple leadership roles with the state, local and American Bar Association’s. Thank you so much for joining us today.

Ryan: Thanks so much for having me, Holly, and thank you for the very kind intro.

Holly: Why don’t you start by telling us a little bit about your background?

Ryan: Sure, so as you said, I’m a partner at Goranson Bain Ausley, in our Plano office. I live in McKinney, Texas. So right near our local courthouse, I’m from Houston originally. Got into family law entirely by accident. I was doing pretty much everything else under the sun, somebody gave me a chance and kind of just learned on the fly, and realized that it was something that I really, truly enjoyed, and was actually okay at it. So ever since then, I’ve bounced around at a couple different firms, but landed my dream job at Goranson Bain, and been here for about four and a half years. And that’s a really wonderful position to be in. I’m surrounded by some very smart lawyers. Sometimes I wonder what they’re doing with me.

Holly: Well, I’m sure they made a good choice. I know you’re super involved in local, state and national bar associations and various organizations. I don’t know how you manage to squeeze it all in. But tell us a little bit about your involvement.

Ryan: Sure. So the one that’s probably takes the most of my time is on my board on the board of directors for TYLA, which for your outside of Texas listeners will be Texas Young Lawyers Association. So the State Bar of Texas is up here, TYLA is just kind of one step below it, I guess. It’s for people that are young lawyers in their first 10 years of practice. And I preside over I think it’s 14 different Texas counties. We’ve got quarterly board meetings each year. And it’s the public service arm of the State Bar. So it’s really devoted to giving back in several different ways. For example, we’ve got a wellness retreat coming up here in a couple of weeks in Austin, which as far as we know, is the first of its kind, at least here in Texas. And then a couple days where we actually host the national trial competition in Fort Worth.

Holly: Yeah, that group does a lot of great things. And it seems like it’s not just limited to young lawyers, because I know I saw the wellness retreat was open to everyone.

Ryan: It is.

Holly: I’ve helped out in judging in the events you all have hosted in the past. So even though I’m no longer sadly a young lawyer, I am very familiar with all the things that y’all do. I think it’s great.

Ryan: And a lot of the stuff we do is open to everybody. Just because TYLA is in charge of putting it together doesn’t mean it’s TYLA lawyers exclusively.

Holly: Alright, so today we’re here to talk about some things specific family law related that we all deal with quite a bit as family lawyers, and that is temporary restraining orders. So can you explain what exactly a temporary restraining order is in the family law context?

Ryan: Sure. So everybody’s favorite topic TROs. In layman’s terms, a TRO is an emergency court order to not do something and that something to not do can be something that’s legal in other contexts or sometimes illegal. For example, you know, a TRO could give somebody the option to not harass somebody, well, generally harassment is illegal. A TRO might also say, well, on some level on a lower level, perhaps you can’t interfere with the use of somebody’s motor vehicle. On the higher end, when people think of TRO, they think of something usually pertaining to their kid.

So a TRO that attaches to the body of a child or excludes somebody from possession of or access to a child is kind of on the more serious grounds and usually that’s what people are asking for in a restraining order. The reason for that is lots of are standing orders and we can talk a little bit more about that later in our jurisdictions already have TROs in them because people do some really nasty things to each other when they’re in litigation. Turning off the lights at their at their house or their spouse’s house, or cutting off the water. I think the Family Code provides I think 28 different remedies.

And most of those in some way, shape or form are inner lineated in most standing orders. So, usually when somebody seeks a TRO in 2022, unless you’re in a county without a standing order, you’re seeking to usually exclude somebody from possession of or access to a child, or sometimes it may be to prevent the sale of a piece of property. Maybe there is some sort of real property that only one spouse has the ability to sell, there’s a divorce pending, and without some sort of court order to stop it, there’s a risk of that asset being lost.

Holly: So what is the criteria under the family code to actually get a TRO?

Ryan: So the non legalese version is an emergency. The Family Code provides the legal definition as an immediate and irreparable injury loss or damage that will result before notice can be served, and hearing can be held. So to me, that sounds like an emergency. And I believe that a TRO should live and die on the immediacy of that potential injury. So you need to say, here’s what the injury loss or damage is, Judge, here’s why it’s urgent. And here’s why that we need the court to step in, we don’t have time for a hearing. And those are the circumstances that truly justify a TRO.

Holly: Oftentimes, I’ll also see people requesting TROs because of the long amount of time, it’s going to take you to get a temporary orders hearing if you don’t have one. So even when we can’t get something like, you know, a protective order with a kick out or even excluding somebody from possession or access, there can be lesser relief, that if if the overall picture is a big enough deal that the judge might want to get you in there within the next two weeks, you can sometimes get one even without this urgent emergency.

Ryan: That is true, as long as you meet the remainder of the legal standard. One kind of thing I do know that judges don’t like is when people just restate the standing orders as a TRO, as kind of just a shameless ploy to try and get into to get a temporary order hearing faster. I’ve, from what I understand, judges don’t really like that, and they don’t really do it in most jurisdictions anymore. But in counties where there are no standing orders, from what I understand, it’s still pretty common. So it can be really shocking to your client, if you know, they get served with you know, a TRO and they’re not a lawyer, they don’t understand what they’re reading, and there’s a list of things they can’t do.

And they’re calling you and freaking out. And you need to have that honest conversation with them and say, okay, this might not be as bad as it seems. Does it say you can’t see your child? Does it keep it, award exclusive possession of the child to somebody else? Does it say you can’t sell a particular piece of property? That may not truly be an emergency anyway, but those are conversations that the attorney would need to have with this client to figure out okay, how serious is this, or is it not?

Holly: When you have a potential client, or it’s an ongoing case, what criteria do you look at in evaluating a situation to determine whether or not you should seek a TRO?

Ryan: So for me, it just lives and dies on that immediacy aspect of it. You know, lots of times people will put these long affidavits in support for requests for TRO against the long history of a very complex and maybe very sad and contentious relationship. But if there’s nothing on the immediate side, TRO isn’t necessarily warranted in that case. So I mean, that’s why when you’re the attorney drafting one, you kind of want to make sure you identify the immediate need right away. Judges are human, they only have so much of attention span that they can tolerate. They don’t want to hear the entire history of the marriage in, you know, lots of business school presentations, they tell you, tell them what they’re going to tell him, or tell them what you’re going to tell them, tell them, then tell them what you’ve told them.

And usually, it’s a good idea to say, you know, you can have a little background in your affidavit, but you say, here’s why I’m seeking the TRO, identify the immediate thing that is happening. And if you want to be able to go through and say, hey, this is a continuing pattern, that’s all well and good, but you need to lead with the immediate need of it right off the bat. Because otherwise, if you’re the attorney defending a TRO, you’re going to say, Judge, this is not an emergency. They can do what everybody else does in this county. And files are a regular request for a temporary order hearing and they need to wait.

Holly: You mentioned, you know, judges being human. So judges in my experience can be very different in what they will grant a TRO for and what they will not. And I think it’s really unfortunate that that’s the case that the law gives them so much discretion about whether or not to grant a TRO. I heard about one judge who you know, a party pulled a gun on the other one and the judge still wouldn’t even sign a temporary restraining order. Meanwhile, there’s other judges out there who will sign one for very little reason. How do you kind of handle the different criteria that many judges may have different from other judges?

Ryan: So I guess it depends on who I’m representing. In my experience, I feel like judges most of the time grant the TRO out of an abundance of caution and maybe when they shouldn’t. Maybe that particular judge has had some sort of experience where they wish they would have granted one and something happened. Or they just say, you know what, it’s in the best interest of the child, I’m going to use that as the basis to grant the TRO, even when they shouldn’t necessarily do that. So if I’m trying to attack the TRO, I look at what the family code says. And then I will just hammer that irreparable harm, the immediacy of it over and over and over again. If I’m on the other side, I’m going to make sure that I can really show that immediate need.

And I want to be able to draw as much evidence to it. So if you’re the one seeking the TRO, you can attach things in addition to your affidavit. It doesn’t have to be just the person that files the case. Maybe there’s a therapist that has a written statement that they can provide, maybe there was a witness, a police officer, text messages that, where one party text, the other one that says I’m going to kill you. That’s a really good thing to include in the affidavit. And then I’d be surprised if any judge who had any understanding of what the rules are, and would look at that and say, oh, my goodness. You know, I had a judge maybe two years ago, do something in a TRO that you can’t do, and that’s kick somebody out of their house.

So you cannot do that under a TRO, you need a protective order to do that. And this judge did it. The attorney that was on the other side of the case doesn’t really do a lot of family law. The judge, I’m guessing didn’t do a lot of family law. He was a visiting judge, I think, and I filed a motion to vacate on that basis, which the district judge granted. And that was the right decision. So I think judges need to make sure they educate themselves on what they have the power to grant and what they don’t as well. So I’ll get off my little soapbox, but you gave me a microphone!

Holly: So different counties also have different local rules about what you need to do with a TRO. And that can vary if it’s a new suit, be it a new, you know, divorce, or SAPCR or a modification that’s a motion to modify that wasn’t currently pending, versus pending litigation. Can you talk a little bit about what to look for in the local rules and the types of things that might be required?

Ryan: Sure, yes, you’re starting in a new suit, brand new on no case history, it’s a lot simpler. You there’s probably no attorney on the other side, unless, I guess maybe the parties haven’t actually actually filed into the case yet. But you both know that they’re there. So that one, oftentimes the court will still require you give notice to the pro se parties. Some judges are sticklers for that some are not. But you always want to start off where your local rules are in the county that you’re filing in and read them closely. The general rule that I see is roughly two hours notice of proceeding on a TRO.

And most of the time, you’re going to need to put some sort of attorney certificate of ex parte relief or whatever you want to call it, that says one of a couple different things. There is no lawyer on the other side, or I contacted the lawyer on the other side, here’s the time I did and we talked about it, and I’m still going forward. Or I contacted the lawyer on the other side and haven’t heard back, or I contacted the pro se litigant on the other side and I haven’t heard back. Some version of that. If there’s a lawyer on the other side, you better have a really good reason for not letting them know.

And this day and age where most lawyers have each other’s cell phones, and a cell phone you can send an email on, I’d be surprised if I got down there in any existing case where there’s a lawyer on the other side, where the first question out of the judge’s mouth is Mr. Bauerle have, you notified opposing counsel of this TRO? And if not, they’re gonna say okay, well, you need to do that, you can come back, or the you can contact them and then we’ll wait two hours until they get down here if they want to contest the TRO. There are limited exceptions for when you can avoid that conference requirement.

They vary a little bit in the verbiage from county to county, but generally they say some version of the irreparable harm is imminent, and there’s insufficient time to notify the other side, or notifying the other side would cause the property to be removed, secreted or destroyed. So basically, the notice would defeat the purpose of getting the TRO. So maybe if providing, maybe the other side’s got the child and providing notice to the other side might make them really fly off the handle and harm the child. That would make sense. But I would suggest to you those circumstances are probably very, very rare.

Holly: I think we all think about what what to do in terms of notice when the case is pending. But when it’s a new case, or it’s a modification, I have found a bit I’ve been kind of surprised when I go look at the local rules and some of the requirements on a new suit, still having to either, you know, certify that there is no attorney on the other side, things of that nature. I’ve also had, it can be very judge specific. I’ve had judges who will call the pro se party up when you show up with your TRO, because they want to hear from the other side. So I think it’s very important to not only read the local rules, but kind of know your judge.

Ryan: Very true. So and if it’s a judge you’re not familiar with, you want to ask around, if it’s a county that you don’t reside in, call your buddy that resides in that county and just say, hey, is there any intel you can give me on Judge XYZ? Because in modification actions, while it is a new suit, some judges will say, did you contact the prior lawyer on this case? Even though in the decree both lawyers were discharged when the decree was entered. Incredibly common, but I see it all the time, it’s very frustrating when you’re the ones taking the TRO and there’s cases 10 years old, and the lawyer may not even remember this case, and it kind of screws up, it can screw up your strategy a little bit.

You lose the element of surprise, but it also beats not getting your TRO, you know, declined, so to speak. So you want to make sure all those boxes are checked, and whatnot. And my little certificate of conference, I always quote the local rule, that when the judge can go down and say pursuant to, you know, Collin County local rule 2.03, I did XYZ. And then that will usually satisfy the judge’s requirements.

Holly: You mentioned a little bit ago, something about a kick out order, and the fact that you cannot have a kick out order in a temporary restraining order. In case any of our listeners don’t know what a kick out order is, can you explain that?

Ryan: Sure. So a kick out order is kicking somebody out of a house where they’ve been residing for the last 30 days. So if husband and wife or even two people that aren’t married, are living together, you can’t kick somebody out of their house without giving them notice a hearing. Unless there is a true emergency situation, not just a TRO level, but you need a family violence protective order level. So there has to be some sort of clear and present danger of family violence to get a temporary ex parte protective order, which kicks the other side out of the house. And that one’s a little bit different. Most judge, the requirement is that the client needs to be present in the courtroom, when the attorney goes to present the application for the temporary ex parte protective order.

They, judges sometimes have questions for their for the client. Sometimes the judge is really looking out for that client, they will say, hey, this thing’s a piece of paper, it doesn’t protect you from bullets. I’ve heard lots of judges say that. And, you know, usually they mean well, but sometimes they want to make sure that everything is done correctly. And in those circumstances, a constable will go and pull the other person out of the house if they need to, to make sure that they are formally evicted from the residence. But the TRO cannot do that. Because it doesn’t just rise to that level. That is a heightened standard that you really have a much more difficult burden of proof on.

Holly: So sometimes we look at trying to get creative ways of kicking someone out without kicking them out. For example, if let’s say the wife is trying to get a TRO against the husband, and the husband works out of the home, and he gets served with a TRO saying you can’t come within 500 feet of wife or kids or anywhere they’re known to be, and he’s not at the home at that moment. Can he go back? Is that a kick out order without a kick out order? And is that something you can do?

Ryan: I mean, you can try. Maybe. I think your judge may have that might be the first question they ask, though is do you live with this person? Some judges may not know that, and they may just sign the affidavit. So that one kind of depends on your judge. And I personally think that that is I appreciate the creative argument of it. But you’re basically asking for a temporary ex parte protective order under the guise of a TRO. I think most judges probably wouldn’t be happy with that. Unless the affidavit specifically says, hey, we live together, because then it kind of looks like you’re pulling, you’re trying to pull a fast one on the court. And I don’t think that is good for your client to start off that hearing within 14 days. And if there’s anything in that affidavit, that is false, or even a little bit misleading, the judge is going to be looking at your client with a little bit of a side eye and kind of wondering about everything else he or she has said.

Holly: A lot of times we get a TRO and for one reason or another we’re not going to be able to have a hearing on that date. I had a case recently where the day that we got our TRO signed, the court coordinator said you better show up with an order extending because we already know you’re not going to be able to have it. Actually have a hearing on this day. So what is required to extend a TRO and how long can you extend it for?

Ryan: So if the parties agree upon it, then in perpetuity, I don’t know why anybody would do that. I think that’s a really bad litigation strategy. But a judge can do it once and only once for an additional 14 days. Again, that’s absent an agreement. So what I do is the same thing that you’re instructed to do, I show up to every TRO hearing, if I’m the person with, who’s seeking the TRO with an order extending, and if I’m the person defending the TRO, I show up with an order dismissing the TRO, just to make sure, for that very reason. A judge may not have time to hear you that day.

I mean, I would say the most common fact pattern is a new lawyer is just hired who represents the other side of the case, and they need time to get up to speed on it. That might be one where you just agree to go ahead, extend the TRO out. And then you know, maybe you can reach agreements before then. I generally don’t like to do that. If it’s somebody who’s being precluded from possession or access to the child, I don’t like to file continuances on those types of motions, I think you just have to go forward, because you’re potentially losing out on a lot of time with the child.

So I just don’t think that that is always a good strategy. Sometimes it’s unavoidable. I know, I won’t generally take a case, unless I’m ready to go for it. You can, you might know the lawyer on the other side, you might be friends with him, you know, they’d be happy to grant a continuance. But you can’t just count on that continuance. And I think if you have a client who’s really willing to go a long time without seeing their child, that’s a little bit problematic as well.

Holly: How many times can a court extended a TRO? Is there a limit on that?

Ryan: Just once on its own, but on, the parties can agree to do it, I guess as far as I know, in perpetuity. I’ve had TROs extended multiple times by the other side when they something kept coming up. And I was happy to do it, because it benefited us because the TRO precluded them from having possession of, access to your communication with with the children. And okay, it’s your funeral dude. Makes my job easier. That’s fine. I don’t think that’s necessarily the most prudent move, but it does happen.

Holly: So let’s say your client is the one who has been served with the TRO. And obviously, all of our clients always think that it never should have been entered and it’s bogus, and everything other side that is false. So what do you do when you think a TRO shouldn’t ever have been entered to begin with, and you want it to go away?

Ryan: So I file a motion to dissolve or dismiss the TRO. I do it in pretty much every single case where my client is the one being served. So I usually file, I start off by filing an answer. Probably say if it’s a it’s a modification that it was filed frivolously, in my motion to vacate the TRO, I’ll usually do some sort of specific denials. You see some lawyers do this when it comes to protect a temporary ex parte protective orders as well. And I’ll say my client specifically denies boom, boom, boom, boom, boom. I usually make an assertion that says this thing was filed falsely or frivolously, or to gain an advantage in the litigation unnecessarily.

I will quote the pertinent portions of the family code and say why it doesn’t apply. And then lots of times I’ll attach an affidavit for my client to give his or her side of the story. I don’t know if the judge is gonna read that affidavit or not. But they might. They already read the other side’s affidavit. Now, they’re not supposed to make up their mind before they take the bench. But as we already talked about judges are human. The more information I can put in front of that fact finder, before the hearing starts, the better. Or maybe the judge just says, hey, I don’t have time to hear this hearing today. And if you’re the one who’s trying to get the TRO dissolved, great.

You can say, well, Judge, that’s awesome, because this thing never should have been filed in the first place. My motion lays out the factual and legal bases to set this thing aside, let’s just go ahead and tee this thing up for a regular TO hearing and we can take our ball and go home. If the judge says too bad and extends it, okay. But if there’s any opportunity to get your client’s facts in front of the court, especially when the other side has already done that, I think it’s worth trying. I don’t know why you wouldn’t do it because you might win. And if you don’t win, okay, who cares? Then you just hash it out at the hearing.

Holly: Do you present that ever to the court before the hearing? Or do you just get that on file before you show up for the hearings that are on the TRO?

Ryan: I always try, I’m not always successful. So the other side is entitled to two days notice of a motion to dissolve a TRO. I think on leave of court, you can get it sooner than that. Nine times out of 10, the judge will just say you can wait for the hearing Mr. Bauerle. I just don’t have time to hear this. Fair enough. But I usually make a run at it. And sometimes the judge will set me you know, three, four days before the TRO hearing and then the judge will dissolve the TRO and then we have the TO hearing a few days later.

But by that time, your client is no longer in that bad position that they were in. Maybe somebody else signed the TRO in the first place. It’s not the district judge is going to hear that case. It happens all the time. You know, depending on what county practice in. Some counties have auxiliary judges that sign TROs even though they won’t be the ones hearing them, sometimes it might be taken to a visiting judge. So you need to be prepared for that either way.

Holly: Talk about preparing your client for the hearing on temporary order, or the TRO. What tips do you have for family lawyers and helping the client prepare for testimony if they are the one who has sought the TRO and is seeking to exclude the other person or have something pretty restrictive against the other person.

Ryan: So you need to be preparing your client for this hearing, at the same time as you’re seeking a TRO in the first place. So in addition to actually working with your client, you better be getting those subpoenas out if there’s any documents you need to authenticate. You need to make sure that your client can substantiate each and every significant fact that they put in their affidavit, because they need to know that the attorney on the other side is going to do their best to pick each and every one of them apart under probably whatever time constraint you have.

So they already should have gathered really quickly. You know, Facebook posts, text messages, whatever, anything that is going to show the judge, hey, here’s what happened. And here’s the proof, here’s why I should be believed. And I like to practice with my clients at least three times for any hearing, if if their budget affords it not everybody can. So going into it. I like to practice their direct and I make it live, I give them an exhibit binder and I go one by one. I in my little exercise, I presume as if there’s going to be a really smart lawyer on the other side, who’s gonna object to every single thing I try and bring in.

Now, we as practitioners know, oftentimes that doesn’t happen, people reach stipulations, but you can just never count on that. And when you’re asking those prove up questions for to authenticate a document you don’t want the first time they’ve heard that to be when they’re on the witness stand. Because they’re a little bit funky, right? Is this a fair and accurate depiction of what it purports to be? Yes. So you want to avoid that entirely. Another thing I recommend is doing a mock cross. And what I like to do is I get an attorney who’s not me, and I bring them in, and I have them be merciless with my client.

And I’ll try and find someone who I think can mimic the other lawyer style a little bit to the extent that I can. So if there, the other attorney is male, I tend to bring in a male lawyer, if the other attorneys female, I tend to be a female lawyer. And I say, you know, have at ’em. And the goal is to make that mock cross examination 1000 times worse than the real thing. And I do it for other lawyers too, in our office, because it’s a really good practice. I’ve made other people’s clients cry before. When they say, hey, that was nothing compared to what Ryan put me through, then, you know, it was worth it.

Holly: So what about when your client has just been served with a TRO? You got just a couple days notice you’re trying to get it vacated, and you got to prep this person for a hearing? Is there anything different that goes into that?

Ryan: So I probably would have already done this, if I’m doing the motion to get the TRO set aside. But I want them I’ll usually ask in their own words, send me something that contradicts each and everything in this affidavit. Tell me why it’s not true. Give me specific examples. And then I will sift through and figure out what the judge is really going to want to hear what the judge isn’t wanting gonna want to hear. Everybody’s gonna say they’re a great parent. Okay, awesome. I’m not gonna waste my time on that. So if they say, okay, well, you know, Dad was here doing this, but I’ve got a Facebook post that shows they were somewhere else doing something different. That would be something that you can use to pick it apart.

And to the extent that you could show a pattern of the other side being false, or just flat out lying. I mean, if the if I’m gonna lie and tell you that this color, this pen and it’s silver and blue is yellow, you’re not going to believe me if I tell you that I’m the world’s best dad. Right? So the more you can show the other side as being dishonest and impeach that witness, the better. And I do the same thing I do with them. I do the mock preparation, I do the mock cross. And yes, the other side does probably have a little bit of an advantage because the judge has read their affidavit first, may have already formed an opinion.

So you need to figure out okay, what is this judge want to hear and practice over and over and over again? I don’t mind sending my clients practice questions. I know some people feel differently about that. They don’t want the client to just read from a script and I totally get that. I usually say with a caveat. It’s an outline. It’s not a script, you got to make changes, it’s going to happen, but these are some questions that you need to be able to answer easily. So what happened on XYZ date? Why is not true.

There needs to be a what, you know, four or five questions that they just need to be able to just absolutely knock it out of the park. And lots of times in practice, they just don’t know the answer to that question. If you ask your client, why should you have custody of your kids? The most common answer I hear is I love my kids. Oh, congratulations, you win. That’s not good enough. So those are the types of questions you need to make sure you practice and have really good responses for.

And you know, also, you want to make sure it sounds silly, but make sure your client is really well prepared. If they’re accused of being you know, drunk and out of work and sloppy, well, they better not show up to court that way, you know. They, loan them a suit, if you need to. But they need to come in polished and clean and well rehearsed. And that way, if they fail, or they do a bad job, it’s not because of you, it’s because of they failed to put the time in.

Holly: So obviously, everybody would love the opportunity to get to run through mock hearings multiple times with their clients, but there are a lot of lawyers who have clients out there who can’t afford to do that. Or for one reason or another, it’s just not practical. How do you help prepare a client in a situation where you’re not gonna be able to practice with them, you’re not going to be, you know what, you might be able to talk to him for 15 minutes about what you need to do.

Ryan: So what I would do there is I would give them maybe a little bit more detailed outline. So here’s the questions I’m probably going to ask you, ones I’ve highlighted in yellow, here is kind of what I’m seeking for you. And I want you to practice on your own and practice in the mirror. I guess there’s potentially some risk of that, I guess, if you ask somebody that they live with, because attorney client privilege wouldn’t work with them, but I’ve yet to see it really be a problem. And I just say practice over and over again.

If you are in a hearing like in Collin County, you got 20 minutes aside, I tell them to time it. I may say hey, I want your testimony done in 14 minutes. That gives me a little bit extra time to do a couple other things. I want them to go through it over and over and over again. I’ll tell them, hey, this might be the most important day of your life. The best lawyer in the world can only do so much. You got to put the time in. So I understand you don’t want to pay me to meet with you for eight hours. I totally get it. But you it’s like anything else, you get out what you put in.

Holly: Is there anything? So you mentioned kind of the 20 minutes aside, I know that Collin County does that. Denton usually does 20 to 30 minutes a side. I think there’s other counties that have similar time restraints throughout Texas. What advice would you give for attorneys about effectively presenting their case when they’re under a time restriction that’s really tight?

Ryan: So you need to time yourself. I mean, sometimes when I’m asking the questions, I’ll go through my outline in my head, and then just kind of time it, time, but with your client. You also want to pre admit as much as you can. I personally like exhibit binders. I think they’re just easier to flip through. I know not everybody does. But I just think it’s easier just to go put one on the witness stand, give one the court reporter, one of the judge, you flip to tab one that’s exhibit one, tab two, that’s exhibit two. It saves you trips, walking up and back to the witness stand every time.

Plus, just makes you look, it’s an easy thing to do that makes you just look a little bit more polished. Summaries of requested relief. I don’t know why everybody doesn’t do this for everything. It’s really simple. The judge may or may not have read the pleadings on your case that day. Summary of requests relief spells out concisely. Here’s what I’m asking for judge, and what the judges often do, granted, denied, they write on them, or they go ask for a copy of it. So they go right on an exhibit that’s been admitted.

So those should spell out exactly what you want. The lawyer will have to make a strategic move whether to make an opening statement or not. Sometimes I do sometimes I don’t. It’s helpful when you have an inquisitive judge who kind of wants to get some information beforehand. How old are these kids? How long have they been married, that makes my job so much easier. I love it when they do that. But they don’t always do that. And try and if you have a reasonable lawyer on the other side, see what you can pre admit to. I’ll stipulate to your 1, 2, 3, 4, 5 if you stipulate to my 7, 8, 9, 10.

And sometimes I think it’s a good idea to bring more than you need. You might not get in all your exhibits, if you’ve got several. And that’s okay. But sometimes you can use an exhibit as a red herring to distract the other side to make you think that they’re going to go that way. And maybe you don’t even bring it in. Or maybe you offer it knowing there’s no exception that it’s ever going to get fit in and that’s okay. But it causes them to stress out about it. So you can also make that strategic decision as well if it’s right for your case.

Holly: A couple of things that I think are really important, and you mentioned the opening statement and whether or not you make one. I sometimes might do a sentence or two I pretty rarely do if there’s a lot of evidence I want to get in. But I think it’s important to know is your judge gonna make you stick to that time limit or not. I recall one time an attorney who was not from the county I was in, must not have been from the county I was at.

There’s no other explanation, who, you know, we had 20 minutes aside, and it was up on the board ticking down. And she used 14 minutes for an opening statement. And then she ended up, you know, barely getting through introductory stuff with our client didn’t get to any of the meat of the case. And she was expecting the judge to give her extra time and the judge said, you’re out of time, and cut her off, and I got the rest of the time to do exactly what I wanted. And needless to say, it did not go well for her client.

So I think it’s really important to know just how likely your judge is stick to that time. And some of the judges make you stick to it, but they won’t put up the clock. And so you’re going to be on your own to keep track of it. And which is very hard to do when you’re in the midst of questioning and all of that. So I think it’s important to be able to prioritize your questions and know, okay, if my client starts rambling, or the other side has been rambling, these are the most important things that I have to get in even if the rest gets cut.

Ryan: Yes. And sometimes too, you can get away with leading your witness at a temporary order hearing, especially if you’re under a really short time constraint. And then you’ve got to pick and choose which questions you really want to lead with, which ones you don’t. Obviously, you’re not supposed to lead on direct, but you know, some dimittimus ones. Okay. Most people will kind of let that slide. But they need to be able to hit those really important open ended questions.

You know, I’ll usually say if you listen, nothing else to me, I want you to answer these four questions perfectly. And yeah, what you said about that 20 minutes that we’re used to in Collin County, I always bring my computer and I have, you know, stop watches set up. So I can watch always have. Because for that exact same reason. I’ve had the same experience with multiple lawyers that didn’t know the rule or didn’t think it was a hard and fast rule. It’s really important. And it can really benefit you, if you’re the one who knows the rules, and the other side doesn’t.

Holly: Another tip, what I always tell my clients is, you know, this is your opportunity to get your story out, especially if you’re seeking to flip custody on temporary or you’re seeking to give the other person less than standard or something out of the ordinary. You want a home run hit in a 20 minutes a side hearing that you have to give your story. But if you start to ramble, we’re gonna have a word, like I’m gonna say, thank you and cut them off, because I don’t want them rambling on something that’s not important and using up our valuable time.

Ryan: Yes, and I know lots of lawyers maybe may have some sort of body language movement they do if their client is talking too much. I’m not going to say what mine is. You know, sometimes there can be a way and you’re not supposed to signal but there may be creative ways the practitioner can get away with telling, it’s the long distance version of kicking your client under the table and telling them to stop.

Holly: So speaking of long distance that makes me kind of get to our next topic of Zoom versus in person. And a lot of courts are now going back to more in person. But there still are a decent amount of courts that either allow you to choose the Zoom option or are still operating via Zoom. How, are there any differences in how you would approach this type of a hearing, if you’re in person versus via Zoom?

Ryan: Yes, for me, if you’re doing it via Zoom, you need, I find I have to allot more time for the entry of exhibits, because you’ve got to pull it up, you got to share it versus if I’ve got an exhibit binder, all you got to do is identify it and flip to it. There are some advantages, though. If you have an exhibit pulled up, you can use the little marker tool and you can circle something really, really big for dramatic effect that can also help. But yeah, I’ve noticed that in in a hearing, I find like an extra five or so minutes is kind of what I’m seeing.

Almost I can come with with Zoom. I know some judges in Collin County, we’re giving you 25 minutes instead of 20 just to kind of make up for the lag time. And then obviously, you have the technological issues that are always possible when you’re doing stuff remotely. But big picture, does it change what I do? Not entirely. It just changes where I do it. Yeah, I think

Holly: Yeah, I think it’s gotten to the point now where a Zoom hearing is not very different at all from an in person hearing. And, man, it saves the client a lot of money when you don’t have to pay four times the amount for you to go to the courthouse and sit there. So one last topic on these types of hearings. Some counties I know Dallas does this, I think Harris does this Fort Worth, or Tarrant, does it. There may be others. The, this type of hearing would be in front of the associate judge. And then you have a possible de novo if somebody doesn’t like the result. Does having the initial hearing happen in front of an associate judge change your strategy at all?

Ryan: Not really, because I’m going for the jugular no matter what. Because, I mean how often do district judges really completely change their associate judge’s rulings? In my experience rarely. Or they change something and I almost think the judge feels bad for you for having to pay all that money and they might change something that’s so minor that it’s really not worth the squeeze. So I and as a practical matter, let’s just say you requested de novo hearing, you don’t know when that hearings gonna take place. I know the rules that you’re supposed to have it within 30 days, but judges will get around that rule by having a de novo conference within 30 days, and then it might be six months before you actually have the de novo trial. And a lot could have changed during that time period. So generally, I, you know, go as if it’s a final trial, and that I’m going to be making sure that it sticks, you can’t count on that your district judge is going to see it any differently.

Even if you do get the chance to go in a relatively short period of time and have that same hearing all over again, I think that probably some district judges defer to their AJs because if word gets out to the bar that Judge So and So is reversing their AJ all the time, they’re going to get an extremely flooded docket, because we’re all going to start appealing whenever things go sideways for us in that particular court. So for me, the answer is no. I mean, I’ll obviously, we prepared to do that. I’ll tell my client that well in advance. I’m like hey, if we knock this thing out of the park, here’s what I promise they’re going to do. And if you get poured out, then here’s what we’re gonna do. But let’s focus on what’s in front of us and then kind of go from there.

Holly: If you are having this hearing in front of an associate judge, and I know at least the ones in Dallas County don’t have a court reporter. I don’t know about the other counties. Do you bring your own court reporter so you have a record?

Ryan: Always. Assuming the client can afford it. Yes.

Holly: Do you ever connect with the opposing attorney about getting a record together?

Ryan: Yes, because it usually saves everybody money. Sometimes you get that lawyer that just won’t, just to say no, and that’s okay. But it’s usually in everybody’s best interest just to, you know, split the fee and save everybody else the cost instead of each of y’all paying for your own separate court reporter. That doesn’t make much sense to me.

Holly Draper

So we’re just about out of time, but one of the questions I like to ask everyone who comes on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

Ryan: Okay, so regarding TROs, or just generally?

Holly: Well, if you have a piece of advice about each, go for it.

Ryan: Okay. So on TROs, I will say this. Only use them when they are appropriate. I have lots of lawyers who use them inappropriately. And it drives me crazy and probably drives the judge crazy, and it usually doesn’t pan out well for their client. Let me give you a couple examples. I had a case where we had a temporary order hearing and went really, really well. But we hadn’t received, we knew we did well, we knew we were going to win, we hadn’t received a ruling yet. So the other side and the parties are still living together. The other side filed a request for a TRO while we’re waiting for the judge’s ruling.

And the obvious deal was to try and change to correct their obvious mistake and making some big problems in that temporary hearing. Completely inappropriate, just made the judge even more mad. I had another lawyer threaten to go get a TRO if I didn’t send them a settlement offer. That’s ridiculous and playing fast and loose with your law license. So in my experience, lots of times TROs are unfortunately overused. You don’t want to be that lawyer who files TROs without any rational basis to do so. I can usually figure out when I’ve got a case against somebody, if they’re the type of lawyer who’s going to do that. I’m like, Yep, I bet you they’re gonna seek a TRO in this case.

And I’m almost always right. You don’t want to be that person, who could be pegged as a fake TRO guy. You know, it doesn’t help you professionally. It certainly doesn’t help your client. And it’s just bad practice. So again, like read the rules, understand them. And make sure you realize when to get a TRO and when to just go get a temporary order. You know, if you’re telling the truth and making sure that yes, let me add this, your client better tell the truth in the affidavit. There better be nothing false or misleading.

There is nothing more frustrating to a judge or to a lawyer when you find out on the scene that your client lied and everything just falls apart. And then you’re just playing damage control. So maybe the client told you what you wanted to hear. Maybe you need to have an honest conversation, say, hey, my job is not to judge you. I’m here to advocate for you. I’m a family law lawyer. I’ve seen everything 10 times worse and in public. So you know, make sure we tell the truth. And I also always put that in writing in an email to a client to just as a CYA basis.

Holly: So then what about your advice in general to young lawyers?

Ryan: I’m going to steal some advice that I heard from somebody else, and that is to steal, steal, steal from people who do the job better than you. And that means whenever you see somebody who has a really good pleading, really good motion to compel discovery, a great affidavit, a good motion to vacate. Add that to your file. We all do it and eventually you’ll know that you’ve reached a certain level, one of the biggest surprises and complements is when you see somebody use the motion that you made, and they use it against you, and they copied it. And first, you’re like, ah, I can’t believe they did that. But of course, impersonation is the greatest form of flattery.

So I’ve got a big file of stuff that I’ve stolen from other lawyers. And I’ve got a thing for this and I thing for that, and start accumulating that I’ve moved firms a couple of times before I found my dream job at GBA. So if that is a possibility for you, you always want to keep them somewhere that might not be on your work computer, also, if you might be looking to switch. So, you know, beg, borrow and steal. But as always, as they probably teach you in law school, it’s not plagiarism, if you give credit. So there’s circumstances where it’s warranted, make sure you say who you stole it from.

Holly: Yeah, and a lot of lawyers, if you know that they have handled that issue in the past, you know, they have something a lot of them will share, you know, reach out and say, have you done this issue and you have a brief or do you have a motion? A lot of them will share it. Will share. They’re very willing to help. I can’t tell you how often I get contacted about briefing on CJC issues or the parental presumption. I’m like, here you go, here’s one of my briefing. But I do find it out there, and nobody attributes it to me. So I’m gonna have to ask for that in the future.

Ryan: Oh, and then the other thing is to maybe you’re in the courthouse, and you see somebody do a really good job arguing a complex motion, ask that lawyer for lunch, you know, like I, I’m flat doesn’t happen often. Maybe I don’t own the right to do this. But every every now and then that’ll happen. And I’m flattered by that. Because at least from what I understand, is we’re supposed to, you know, give, give a hand up and hand out to people that are working their way up. I made a lot of mistakes. Early on in my career, when I had very little guidance. Here’s here’s the file. I haven’t met the client yet, hearing’s this afternoon. Figure it out. I learned the hard way, a lot. So the more you can follow somebody who seems to at least have some idea of what you’re doing is always a good idea. And most of us are, we talk for a living, we’re happy to talk about ourselves and our accomplishments, all you got to do is ask.

Holly: Well, thank you so much for joining us today. Where can our listeners go if they want to learn more about you?

Ryan: So the easiest way is just to probably Google me, Ryan, R Y A N Bauerle is the last name. B as in boy, A U E R L E. And the Goranson Bain website will probably just come up and spelled it on there. And feel free to email me if you have any questions. My email address is [email protected].

Holly: And I know you do a podcast, family law podcast for the ABA, right?

Ryan: I do. So it’s the family law, insert the family law podcast with the ABA Family Law Section. So probably the fastest way is to Google ABA Family Law Section podcast. You can find all our podcasts on there. And I hope to have you Holly on there someday soon.

Holly: I would be happy to you and I’m sure a lot of our listeners would probably enjoy the content there as well.

Ryan: Thank you.

Holly: Well, thank you so much for joining us and for our listeners, if you enjoyed this podcast please take a second leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.

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