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Tuesday, October 15, 2013

TRO (Temporary Restraining Order) and Injunctions in Civil Cases

I had an interested day in Court today. We won our case -- the surprise was the amount of evidence and the depth of the hearing. Usually a TRO -- slang for a temporary restraining order -- is almost universally granted pending a full hearing on the matter.

In this case, we represented the respondent -- the individual being accused of taking actions that should be "stopped." How did we beat this case? The key is understanding what is requried for a TRO.

First, a discussion of the process. When a petitoner brings a complaint of harassment, threats, or assault, that is not family related, the Court will schedule an initial TRO hearing. Additionally, the court will schedule a full injunction hearing for about 90 days following the TRO hearing date. The full hearing is conducted in front of a judge, using strict rules of evidence.

A TRO requires that the petitioner (the person bringing the case) show:
(1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order.

(In re Estate of Reilly, 933 A.2d 830, 834 (D.C. 2007))

When defending these cases, first, focus you need to prepare your respondent. This requires carefully preparation to demonstrate that he/she is reasonable, even tempered, and presents well at court. Practice! Your client MUST be smooth and clear in his/her presentation.

While the level of proof required for an initial TRO is minimal, it is STILL present. Mere allegations are not enough for the petitioner to succeed. Therefore, you should be prepared to rebut any witness that might be brought by the petitioner -- strike the credibility or the knowledge of the witness. Isolate the petitioner -- her word against his word is not enough to convict. It is frequent that the petitioner (especially wilely plaintiff's attorneys) will try to get petitioners to claim "fear of harm" and that "he/she is facing immediate, irreversible harm". CHALLENGE THIS. There must be some corrobration to support the position. It must be credible.

You should, generally, expect to lose the initial TRO hearing. This is common -- the Court is inclined to grant this just to be safe. However...and this is VERY important - you want to setup for the scheduling conference for the full injunction hearing. The scheduling hearing will be set at the TRO hearing, and is usually one to two weeks after the TRO hearing. Regardless of the outcome, either party may continue with the full hearing.

By asking the proper questions at the TRO hearing you setup the record to challenge (or refute) the petitioner's position. At the full hearing, the petitioner will have a much more strenuous time getting a permanent order.

Note -- for the TRO, come prepared to ask questions of the opposing witness. You will have a chance to put on a case, no matter how low the bar for an initial finding may be. THIS WILL BE ABOUT CREDIBILITY.

Need help with a restraining order? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex TRO/injunction issues.

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

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