Temporary Restraining Orders & Injunctions: An Explanation
Temporary restraining orders and injunctions work hand-in-hand to provide equitable remedies to individuals and businesses who have been wronged. To put it simply, injunctions are court instructions that either forbid someone from doing something, or order them to do something. Temporary restraining orders are, as the name suggests, non-permanent court orders that are affective for the period of time between when an injunction filing and the actual hearing.
To illustrate, if one of your employees leaks one of your company’s trade secrets, you can file an injunction to get them to stop the leaking. If the injunction hearing is set for a week and a half after filing, then the employee would have plenty of time to leak more information. Injunctions and temporary restraining orders are also often used in cases of divorce and hostile business takeovers, as a way to ensure that no financial funny business occurs at the beginning of the litigation process.
TROs and Injunctions: A History In Two Paragraphs
Henry VII sired the infamous Henry VIII, commissioned the crown imperial, and X. And during the time of his reign, injunctions were introduced as a part of litigation. Because of shifting cultural conditions, society developed a way to doll out equitable punishments that fit the crime, instead of just throwing people in dungeons and killing them.
As such, the idea of status quo ante, or making something whole again, was flushed out and codified into a legal process – namely injunctions. The principal is based in the notion that ‘equitable remedies’ should be instituted for certain crimes. For example, in order to remedy a trespassing situation, money to the plaintiff would not solve the problem, but legally insisting that the trespassing stop under further penalty would probably remedy the situation.
Injunctions In Today’s Legal System
As stated above, an injunction either forces a person or company to do something or stop doing it. Injunction can be levied against the startup partner with whom you are breaking-up, your soon-to-be ex, or a stranger harassing you online.
Injunction infractions are taken very seriously by the courts and disregarding one can lead to civil and criminal penalties.
Injunctions are often used in cases of
- Domestic violence
- Physical abuse
- Trade dress
- IP infringement
- Trade secret disclosure
- Tortious interference
- Civil and criminal contempt
- Unauthorized practice of law
What Are Temporary Restraining Orders
TROs, or temporary restraining orders, are basically stop-gaps between the time you file for an injunction and the first hearing for the injunction. Essentially, they’re pre-trial temporary injunctions. A judge’s decision on a temporary restraining order cannot be appealed.
A significant feature of TROs is that they can be granted ex parte. That means that the individual or business on the receiving end of a TRO does not have to be notified ahead of time that it’s on its way. This is often helpful as it usually ensures that no monkey business can occur before the actual injunction hearing.
How Long Do Temporary Restraining Orders Last?
States laws vary when it comes to TRO and injunction statutes. On average, though, it’s safe to say that most state laws allow for TROs for up to two weeks. In federal courts, the standard TRO length is 14 days, but judges can extend them with “good cause.” They can also be extended if the opposing party agrees to extend the period of time.
What An Attorney Must Prove To Win A Temporary Restraining Order
In order to successfully win a temporary restraining order, your attorney must prove to the judge that:
- You will likely win your injunction
- The actions for which you are seeking relief from are irreparably harming you in some way
- If the TRO is not granted, you or others will suffer because of it
- The TRO doesn’t injure or harm the public in some way
Do You Have To Use A Lawyer In Your State To Get A TRO?
While many people feel more comfortable using a lawyer in their state, it’s not necessary for TROs. Most lawyers do know the rules for the different states, and most have probably worked with businesses outside of their jurisdiction on these types of legal matters. If you’re a business, the real key with finding a good TRO lawyer is to find one that knows your industry well as opposed to someone close.
Procedural Rules Of Temporary Restraining Orders
The federal temporary restraining order statutes say that in order to be granted a temporary restraining order without notifying the defendant ahead of time, you must:
a) provide an affidavit, with specific facts, that prove immediate harm; and
b) have their attorney certify in writing any efforts made to give notice to the intended recipient, or the reasons notice should not be given.
From a logistical standpoint, the federal temporary restraining order rule says that every TRO issued must:
a) include the date and hour it was issued;
b) stated why it was granted ex parte (if it was granted ex parte);
c) describe any injury that would have probably occurred if the TRO wasn’t granted;
d) be promptly delivered to clerk’s office for filing.
If you need a lawyer to aide with a getting you a temporary restraining order or injunction against an individual or business, give the attorneys at Kelly/Warner a call. We’ve worked with people and companies from all corners of the country (and abroad) and have considerable experience with TROs and injunctions.