Demystifying the Law: Cease & Desist Letters and Restraining Orders

Posted May 12, 2011 in Consumer Law by

Life would be easier if people always followed the Golden Rule. But since they don’t, there are several types of legal remedies available to urge or force people to act in a legal and ethical manner. Today’s blog will demystify two of those: Ccease & desist letters and restraining orders.

     
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Cease & Desist Letters Defined

Suppose you’re receiving harassing phone calls from your ex. Or maybe you’ve discovered that someone’s plagiarized your writing and is claiming it as his own. Or perhaps you’re a small business that’s discovered your competitor is infringing a patent you own.

One of the first steps you can take is to send the offender a cease & desist letter (C&D). A C&D tells someone to stop their illegal behavior (cease) and not resume it in the future (desist). Typically, it also tells the offender what legal actions you’ll take if they ignore the cease & desist.

A cease & desist can written by you or your lawyer. Typically a judge does not issue a cease & desist letter and the police are not involved. Not surprisingly, a C&D written by an attorney is more likely to get an offender’s attention than a C&D written by a non-lawyer.

Assuming the offender’s behavior is not endangering you or your family, a cease & desist is a good first step. It doesn’t take much time to write, and it may cost less than a restraining order. It also serves to put the offender on notice that his behavior is unwelcome and illegal. Particularly if you send the C&D by certified mail, the offender cannot later claim that he was unaware his behavior was illegal.

If, after sending a C&D, the offender fails to adhere to it, you can then pursue criminal or civil legal action.

Restraining Order Defined

A restraining order is a court order telling someone to follow certain conditions or to not do certain things. A judge will sign a restraining order that spells out the terms someone must follow or risk legal consequences. Restraining orders are often used to give legal protection to victims of domestic abuse, harassment, stalking and neighborhood disputes.

The offender, for example, may be forbidden from contacting someone in person, by phone, email or text. Restraining orders can also ban someone from a piece of property, buying or selling certain assets, possessing a gun or taking children outside a particular area.

In most areas, there are several types of restraining orders. These include:

  • Emergency protective orders, which goes into effect immediately but last for only a short period of time until you can apply for a restraining order
  • Temporary restraining order, which may be issued after you’ve applied for a restraining order, and usually last a month or less until a full hearing can be held
  • Permanent restraining order, which is issued after a hearing is held

To get a restraining order, you or your attorney must complete paperwork asking the court to issue the order. You’ll have to describe the abusive or harassing behavior in detail. Once you’ve completed the paperwork, you’ll:

  • Go to the local courthouse with your forms, your ID and identifying info about the offender
  • The court clerk gives the information to a judge, who decides if a temporary restraining order is needed until a hearing can be held
  • A hearing date for the permanent restraining order is set
  • The offender is notified of your application for a restraining order, the issuance of the temporary restraining order (if appropriate) and the hearing date
  • At the hearing, you must show evidence of the abuse or harassment, and your need for protection
  • The judge decides whether to issue the permanent restraining order

Restraining orders have both pros and cons compared to a cease & desist. Because it is court ordered, a restraining order carries more weight than a cease & desist. By the same token, however, you must convince a judge that the restraining order is necessary. It can be time consuming and expensive to obtain a restraining order.

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