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January 01, 2019 Feature
Sua Sponte A Judge Comments
A judge advises both sides to be ready to move quickly and without error.
Hon. Curtis E. A. Karnow
Flying an F-18 fighter jet is very much like flying a small propeller plane, except everything happens very, very, very fast. The inexperienced pilot cannot keep up; he or she will fall behind the curve and omit critical items, forget to call the tower or drop the landing gear. The flight will not end well.
So too with temporary restraining orders and preliminary injunctions: The procedures often compress years of litigation into weeks. As Erik Christiansen suggests in his article, counsel on both sides must be ready to move very rapidly, and there is little room for error. In California state courts, and in other jurisdictions, these motions are generally resolved on the papers—certainly temporary restraining orders (TROs) almost always are—and failures of form, failures to provide a foundation for statements in declarations, failure to authenticate, and so on, will all prove fatal. In California courts, there are specified ways to seek permission for live witnesses or for judicial notice. Declarations need specified magic language at the end. All the basic legal research on the claims—and perhaps some defenses—needs to have been done before the hearings.
In California state courts, don’t count on having live witnesses at a preliminary injunction hearing—the court has discretion to refuse, and for judges with heavy motions calendars, the temptation to just rely on the papers can be irresistible. So it is that the papers have to be good—very good. The declarations have to carry their own water, as it were. The papers have to be easy to read, demonstrate their own admissibility, and appear highly credible. Effective papers make a complex case simple, not the other way around; and they respect the judge’s time. Don’t send in two bankers’ boxes of papers. If overwhelmed with exhibits, the judge won’t get to the most important pages.
In California, bonds are not essential for TROs, but a judge might require one—and will always order a bond for a preliminary injunction. The moving party should have the insurer ready to go, and the opposing party should have admissible evidence to support a request for as high a bond as possible. If depositions are sought before the injunction hearing, both sides must be armed with their reasons why those should or should not go forward—locally or sometimes, God forbid, outside the jurisdiction.
In short, within a few weeks, the lawyers must be ready to win on issues that normally erupt during every phase of litigation—motions to dismiss, evidentiary disputes, discovery battles—and indeed trial. The pace is brutal. Fall behind and you’ll crash.
I am not exaggerating the stakes. The results of a preliminary injunction hearing cast a permanent shadow over the case. First, the preliminary relief might be almost the whole ball game—blocking a competitor from a market or from using confidential information, stopping construction, and so on. But even when the preliminary relief is not so dramatic, the ruling has legs—despite a thin record, abbreviated research, and perhaps little analysis—because the judge will probably have spoken on the merits. In my past intellectual property practice, many of my cases resolved based on the results of preliminary injunction motions, settling either within weeks or later. You can be assured that the winning party will trumpet the win in the first line of every brief for every motion thereafter, whether it really matters or not. A few weeks ago, I settled another judge’s case in which an injunction had issued: It was, practically, impossible for the defendant to suggest the merits were truly on his side.
A last word from the reader of your briefs: The stakes are high not only for your client. They are for you as well. TROs and preliminary injunctions usually are the occasion of your first—and lasting—impression. This will be your first brief, your first argument. The judge will figure your credibility, skill, and judgment. Exaggerations, mis-cites, sloppy research, and analytical weaknesses can erupt in the rush to make some truly awful deadlines or as the result of the felt need to win. But the judge won’t forget.
High stakes, abbreviated records, a couple of weeks to cram in an entire case. This is the world of high-performance lawyering. Strap on your pressure suit.
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