Whether preventing an individual from harm or halting unlawful business dealings, temporary restraining orders (TROs) are one of the most crucial legal tools available to parties for immediate relief in urgent situations. For young attorneys, understanding when and how to file a TRO is essential to becoming an effective advocate for clients in crisis.
Imagine the scenario in which a co-owner, named Joe, of a commercial property, approaches you in panic. Joe had previously purchased a property with his business partner, Anne. However, Anne is now attempting to sell the property without Joe’s consent after a disagreement. Immediate action is necessary to prevent the sale from proceeding before Joe can legally challenge it. Until the court can determine ownership rights, a TRO is necessary and appropriate to halt the transaction.
The key to determining whether a TRO is necessary requires consideration of the three key principles of a TRO.
Although the situation with Joe is a great example of a property dispute that is appropriate for a TRO, there are several other scenarios in which this tool can be effectively used, including:
If you find yourself in a case where a TRO is necessary, what should you ensure is argued within the TRO?
Federal Rule of Civil Procedure 65 governs TROs and should be referenced prior to filing. Importantly, and due to the urgency of a TRO, a court may issue a TRO without notifying the opposing party in certain circumstances.
So, practically, how should the TRO look?
Your first header should be the “Statement of Relief Sought,” where you will clearly state what specific actions the TRO seeks to prevent. For example, “Plaintiff requests that Defendant be enjoined from selling, transferring, or otherwise disposing of the disputed property located at [address] until further order of the court.”
Next, your second header should be “Arguments and Legal Authorities,” where you will explain why the TRO is necessary, ensuring that you address the three key components:
Do not forget to emphasize why waiting for a full hearing would cause irreparable damage by using phrases like “immediate intervention is necessary to prevent irreversible harm.”
Then, provide facts supporting the TRO. This section of your TRO should highlight a logical and emotionally compelling story in chronological order and include relevant case law that illustrates how this situation meets the legal standards. It is important for a TRO also to provide a sworn declaration or affidavit, including the details leading to the TRO request, evidence such as correspondence, police reports, or contracts related to the dispute, and any prior attempts made to resolve the issue. Use specific dates, times, and events to strengthen the credibility of your factual assertions.
Fourth, if you are seeking an ex parte TRO (i.e., an order without a hearing), ensure you are complying with Rule 65(b) notice requirements, where you will certify all efforts made to notify the opposing party and explain to the court why notice should not be required.
Finally, draft a proposed TRO order for court approval, where it explicitly and unambiguously describes the exact restrictions placed on the opposing party, the expiration date of the TRO, and a date and time for a proposed hearing. Keep in mind that a TRO expires within 14 days of the date of the order.
Before filing a TRO, weigh the risks and considerations carefully. Courts require strong evidence of immediate and irreparable harm. Similarly, if you are seeking an ex parte TRO without notification to the opposing party, you must be able to justify why notice should not be required. Thus, if the request lacks compelling proof of an urgency or actual irreparable harm, it may be denied.
Further, counsel should consider whether a TRO will escalate tensions between the parties, especially in situations of domestic violence or stalking and harassment. It can cause a victim to be in more harm. Therefore, ensuring the victim is connected with community resources for a safety plan is essential. In business disputes, how it might affect business relationships and any potential impact on the business’s reputation should also be considered.
A TRO goes into effect immediately and restricts the opposing party from engaging in the prohibited actions listed within the order until the hearing date that is listed within the same order.
Within 14 days, a court hearing will be set to determine whether the TRO should be extended to a preliminary injunction against the opposing party until the suit is resolved or if the TRO should be dismissed.
Violations of a TRO can result in serious consequences, including contempt of court, fines, and even criminal charges. If there are violations, document them with detailed records that include the dates, times, and descriptions, and save any relevant evidence, such as correspondence or witness statements. Consider further notifying law enforcement to report the violation, and keep a copy of that police report to inform the court of the violation(s).
Mastering the art of drafting and filing a TRO is a vital skill for lawyers. In moments of crisis for your clients, your ability to act swiftly and persuasively can mean the difference between lasting damage and justice for your client. Approach each TRO with clear legal reasoning and compelling evidence, remembering the high burden of proof the court requires, as well as the necessity to protect your client.
