Obtaining Your First Temporary Restraining Order and Injunction - ABA YLD 101 Practice Series

By Ben J. Scott

When first learning to practice law, it is always important to slow down, pay extra attention to the details of a given project, and ensure that you represent your client properly. That can be even more challenging than usual when seeking your first temporary restraining order ("TRO") or injunction; time is of the essence in these situations, and slowing down is not always an option. Here are some things to think about when pursuing injunctive relief early in your career.

The Temporary Restraining Order:

  • A word of caution. Injunctive relief is serious business. It is a form of extraordinary relief and should not be sought casually. However, when it is necessary, it can be an invaluable tool in protecting a client's interests. Be prepared for the judge to give you an extra dose of scrutiny - you are asking for that by seeking such relief.
  • Know the rules. First stop - the Rules of Civil Procedure. In the Federal Rules, injunctions and restraining orders are governed by Rule 65, and most states have a similar rule.
  • Call the clerk. Procedures for presenting TROs and setting hearings on injunctions vary from jurisdiction to jurisdiction and, because of their unique nature, from judge to judge. When in doubt, never hesitate to call the clerk of court to ensure that you are arranging things properly. It is also a good idea to call or visit the judge's assistant or courtroom clerk to ensure your compliance with the court's wishes.
  • Look at a Form. There is nothing wrong with making use of other lawyers' work - there is much to learn from already invented wheels. Ask a lawyer you trust to give you a good example of all the documents involved in getting a TRO and injunction entered in your jurisdiction. However, look at forms - do not copy them. Not only is every case different and deserving of individual attention, but also you will learn far more if you craft proper pleadings rather than merely filling in blanks.
  • Draft your papers. You may petition the court for a TRO ex parte and without giving notice to the other party. Confirm which of your civil courts are proper venues for seeking equitable relief. You will prepare a Complaint and/or application for TRO depending upon your jurisdiction's procedural requirements and present it to a judge for review and execution. Typically, you will need a verified Complaint (notarized signature by the party) or Affidavit from the party, so be sure that you know how to get your client in front of a notary with a copy of the papers. Once your papers are ready, go see the judge.
  • Be specific. While an injunction can typically restrain or compel action, a TRO traditionally has the power only to restrain an action. Be as specific as possible about what it is you are seeking to restrain.
  • See the judge. When drafting your TRO, anticipate the judge's concerns and draw up the best possible document to satisfy both the judge and your client. Being told by a judge that the TRO will need to be redrafted before he or she will sign it costs valuable time. Depending upon the urgency of your case, you may be waiting for a judge in a hallway or trying to find out which judges are still in the building in the afternoon or which ones arrive first in the morning. After the judge reviews and signs the TRO, you will need to file the document with the court.
  • Set a hearing date. The TRO, because it is typically entered without notice to the other party, only lasts for a short period of time - in most jurisdictions fifteen (15) days. It merely maintains the status quo until the court can hold an injunction hearing. Your TRO will have a section setting a hearing date, and the judge will complete that as part of approving the TRO. At the hearing, the court will hear from both parties and rule on whether your client should be granted an injunction.
  • Give the other party proper notice. After the judge has signed off on the TRO, it is imperative that you give the other party notice of the TRO as well as notice of the hearing date for the temporary injunction. Formal service of process is likely required, but consult your jurisdiction's rules.

The Injunction Hearing:

  • Temporary or permanent? The difference is obvious enough, but you typically need to petition the court for one or the other. A temporary injunction, if it serves your clients' needs, is typically easier to achieve as the relief is not as extreme.
  • Know the legal standard. A quick search regarding the elements of injunctive relief in the applicable jurisdiction will give you recent and binding case law to cite. Standards tend to be fairly consistent from jurisdiction to jurisdiction, but an iron-clad, recent citation establishing the current state of the law ensures proper pleading and puts the court at ease. The typical standard that a court employs in determining whether an injunction is warranted is four-fold - the court considers: 1) the threat of irreparable harm (harm for which money paid at a later date cannot compensate) to plaintiff; 2) the balance between this harm to plaintiff and the harm an injunction would inflict on the defendant; 3) the probability that the plaintiff will succeed on the merits at trial; and 4) the public interest. Make sure that you address each of these elements with the court.
  • Prepare yourself and the court for the hearing. You want to do an excellent job of providing the court with the law and proving the facts that support your application for equitable relief. You should do this by: 1) submitting an excellent brief that cites to law and backs up factual assertions with documents and affidavits; and 2) preparing to prove everything in the brief at the hearing by way of documents and live witnesses.
  • Set up a court reporter. If it is important enough for an injunction hearing, it is important enough for a court reporter. You will be well served by having the judge's words and the sworn testimony of witnesses on the record.
  • Tell the court why extraordinary relief is warranted.  Your client only deserves injunctive relief if filing a conventional lawsuit and winning at trial will not provide adequate relief. Something else must be on the line - something that requires immediate action and for which future monetary damages will not be adequate relief. Perhaps your client faces the impending sale of a piece of property perfectly suited for a unique development, serious damage to the reputation of a company, or the immediate threat of irreparable patent infringement. Your briefs and oral arguments should leave no doubt as to why your case is one deserving of injunctive relief.
  • Convince the court that you will win at trial. The threat of extraordinary harm is not enough for the court to grant your client injunctive relief - you also must convince the judge that you are likely to win at a trial on the merits. To that end, line up as much evidence as you have to support your case, both legal and factual. Cite cases to the court, provide copies of opinions and pay serious attention to the quality of the work product that you put in the judge's hands. Also provide as much factual support as you are able in the form of supporting documents and affidavits as well as live witnesses at the hearing.
  • Be prepared to counter defendant's argued burden. Undoubtedly, part of the defendant's strategy will be to contend that subjecting the defendant to the requested injunction is overly burdensome and unnecessary. Be prepared to substantively address the judge's inevitable concern about this issue.
  • Be specific about the term. Clarity is key to a good injunction. This applies to the term as well - if this injunction expires at a particular time or upon the occurrence of a specific event, make that explicitly clear in the injunction that you propose to the court so that the other party cannot plead confusion if they violate the terms.
  • Be specific about who or what is being restrained or compelled. You may be back at the courthouse to enforce the terms of your injunction, and you and your client will be served far better by an injunction that has clear, easily enforceable terms. Every situation is different, so it is difficult to prescribe a one-size-fits-all approach, but be as specific as possible in drafting your request to the court. Also, try to incorporate requirements in your injunction for which compliance or non-compliance will be easy to prove, whether through a photograph, a receipt, or some other form of documentation.
  • Prepare your client. Not only do you need to prepare any witnesses you may call at the hearing to testify, you also need to give your client a fair preview of what is going to occur. Give your client an explanation of what the process will entail, how long it will take, the likelihood of success, and contingency plans in the event of a loss. Keeping your client informed and managing client expectations is always a critical piece of being a good advocate, but injunctions address important and time-sensitive issues so being a good communicator is even more important than usual.

Every case involving injunctive relief is different, so do not let some uncertainty about the process shake your confidence. Even experienced lawyers often do not know quite what to expect at an injunction hearing. Focus on serving your client's needs and satisfying the judge's concerns, and you will do an excellent job.


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About the Author

Ben J. Scott is a civil litigation attorney with Butler, Snow, O'Mara, Stevens & Cannada, PLLC in Memphis, Tennessee. He practices in the areas of healthcare, product liability, medical professional liability, and commercial litigation. He is a member of the American Bar Association's Section of Litigation.

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