Sometimes you have a case where winning money won’t completely fix your problem. You need to have the judge order someone to do something or to stop doing something. These are injunctions, and can be granted by the judge very quickly, if necessary.
There are three kinds of injunctions available. Temporary restraining orders and preliminary injunctions are issued for a short period of time, and help to address a problem faster, until there can be a full trial on the matter. A permanent injunction can then be issued, resolving the matter fully.
Temporary Restraining Orders and Preliminary Injunctions
Both of these are issued for a specific period of time. They are designed to either preserve the present state of affairs—the status quo– or to prevent something from happening. A full trial on the merits of your case hasn’t happened yet, but you need to have an order that would protect your interests until that happens.
Temporary restraining orders can be granted in emergency situations even without notice to the other party. If you can show the judge that letting the defendant know you are asking for it would cause the kind of harm you’re trying to prevent, then you may be able to get the order without notice.
Here’s an example: If you’re a business owner and you have good reason to believe that an employee is going to quit and take confidential client lists and information to another employer, you would need to act fast and prevent this from happening.
You could go into court right away to ask for an emergency temporary restraining order, without giving notice to the employee. You would explain to the judge that if the employee knew that you were going to try to stop him, he could give out your confidential information to a competitor before the hearing date. By the time the hearing date came, it would be too late.
A ten-day temporary restraining order could be issued, preventing your employee from using or disclosing your information, and setting a date for a preliminary injunction.
During the hearing on the preliminary injunction, the issues can be explored further, and the employee would have a chance to defend against the need for the injunction.
To get a preliminary injunction that would continue to protect your rights or interests, you would have to show:
1. You have a clear right in need of protection. You would show that you have a definite protectable interest, whether it is related to your business, your property, or your safety, or some other area. In this case, it is your confidential client list and information. You may have spent considerable time and creativity building this information, which gives you a competitive advantage.
2. You would be harmed irreparably if you didn’t get the injunction. Show what would likely follow from your interest not being protected. Here, once the confidential information is made public, it can’t be “un-done.”
3. Money or other legal actions won’t help you. If your safety is at issue, clearly preventing it is better than paying for it. Or if an asset of yours would be lost which can’t really be quantified, then it is better to protect it.
4. You are more likely than not going to win once you have a full trial. At this stage, since it’s still temporary, you don’t have to completely prove your case, but you do have to show it’s a good one.
5. If the other factors are there, then you also should show that you would be hurt more by not having the injunction than the defendant would be hurt if you did have the injunction.
Before issuing an injunction, the court may require a bond to be given, which would be an amount of money to cover costs and harm to the defendant if the injunction is found to have been wrongly ordered.
A permanent injunction accomplishes basically the same purpose as the preliminary injunction—it maintains a status quo by ordering someone to do or not do something. It is issued, though, after a full trial on the merits of the case.
The factors to get a permanent injunction are mostly the same as well: you have to show your right to be protected; the harm that will come if you don’t get the injunction that is irreparable; and that you can’t fix the harm with money or other relief. For the permanent injunction, though, you have to prove your case on the merits.
Once a permanent injunction is ordered by the court, it continues in effect unless it is changed by another order of court. It has to be followed by everyone that has knowledge of the injunction. For example, if the employee is restrained from taking and disclosing your confidential business information, he could be held in contempt of court for violating the order. If his future employer knows of the injunction, he or she could also be in contempt of court for using the information.
Injunctions are frequently used in divorce cases to protect the marital property, to ensure children are not taken out of the state, to decide on exclusive use of the home, and other such issues. They can be a very useful tool, including the emergency temporary restraining orders, to provide protection during the divorce.
There are many other situations as well, where this kind of court action can help someone in need of protection, when money alone won’t take care of it.