Tip 2: Use the Complaint as the Starting Point.
While any preliminary relief must be requested in a motion and is typically supported by a brief, it is beneficial to utilize the complaint as a starting point to begin to argue for the relief you are requesting. Because it is likely the first pleading that the judge deciding your motion will read, it can be valuable to use the complaint to make a strong case for why your client is entitled to preliminary injunctive relief. The complaint should clearly lay out how the case satisfies all of the necessary elements for a preliminary injunction in your jurisdiction. If you are seeking a TRO, consider having someone with knowledge of the facts alleged in the complaint verify the complaint. This eliminates the need to draft affidavits, which saved time can be used to prepare for the hearing. Although a verified complaint alone is also adequate at the preliminary injunction stage, if time allows, consider using multiple affidavits to build credibility on the facts contained in the verified complaint.
Tip 3: Consider Seeking Expedited Discovery.
Rule 26(d) of the Federal Rules of Civil Procedure (and comparable state court rules) allow courts to adjust the timing and sequence for conducting discovery. This gives courts the discretion to order discovery on an expedited basis, so that it can be conducted prior to a preliminary injunction hearing. Courts generally grant a motion for expedited discovery for good cause shown, or through an evaluation of the abovementioned preliminary injunctive relief elements. Expedited discovery can be sought on discrete issues that will bolter your case for injunctive relief. While this process adds to the amount of work that must be completed in an already short timeframe, it can uncover invaluable evidence to support your motion.
Tip 4: Know All the Facts.
In the rush to prepare a brief, supporting affidavits, and potentially conducting expedited discovery, it is easy to lose sight of preparing to argue your motion before the court. Make sure that this task does not fall to the wayside. While completing these other necessary tasks will jump start your hearing preparation, it is critical to spend time getting to know all the facts that support your arguments and to anticipate and prepare counterarguments to the points likely to be raised by defense counsel and the court. Even in an ex parte TRO hearing, expect the judge to heavily scrutinize the evidence you present. By knowing the facts and your supporting evidence, you can confidently present your case to the court, which will bolster your claim for relief.
Seeking preliminary injunctive relief can be a challenge given the lack of time to prepare for and argue your case to the court. You can prepare for some of these difficulties early on by seeking out a court more likely to grant your motion and by tailoring the complaint to the elements you will need to establish to obtain preliminary injunctive relief. Consider requesting expedited discovery to gain critically important evidence to support your claims. Finally, by making yourself an expert on the facts and evidence to support your motion at the hearing on your motion, you can better position yourself for a successful outcome.