Sua Sponte A Judge Comments

Download a printable PDF of this article. (The sua sponte begins on page two of the PDF.)

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.