Litigation Strategies & Tactics Brainstorming Resource

One of the greatest failures of most litigators is the failure to infuse strategic and tactical thinking into every aspect of practice.  In part, this is a business model failure, where billing methodologies (hourly), high overhead and resulting schedule burdens lead to reactive, flat footed litigation.  Removing this structural barrier to strategically and tactically sharp litigation was one of my key motivations when building The Law Office of Jeff Vail LLC. However, one can't simply remove the barriers to strategic and tactical innovation and expect brilliance to suddenly emerge!  Instead, strategic and tactical thinking must be consciously infused into all aspects of a litigation practice.  One of the most effective methods for doing this that I've found is--surprise--a "checklist" of sorts.  More accurately, a brainstorming list--a set of ideas and concepts to spark brainstorming at the critical inflection points in any given litigation (e.g. developing a strategic plan, drafting a complaint, or preparing for a deposition or trial).  I've published the beginnings of just such a brainstorming list for litigation strategy and tactics.  Over the next several months, I plan to link each of these concepts to a brief article describing the concept and illustrating its application in the context of litigation.

Injunctive Relief (Litigation Checklist)

This post on filing for Injunctive Relief is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist specifically addresses filing for an injunction in a civil matter, and does not address domestic or criminal restraining orders.  In Colorado, there are three stages of seeking an inunction:  the Temporary Restraining Order (TRO), the Preliminary Injunction, and the Permanent Injunction.  While in virtually all cases the party seeking an injunction will ultimately want a permanent injunction to be entered by the court, the first step is to file a complaint for injunctive relief along with a motion for a temporary restraining order.  The effect of the TRO is to maintain the status quo (or, rarely, alter the status quo) to prevent irreparable harm until a hearing for a preliminary injunction and, ultimately, a hearing for a permanent injunction can be held.
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Checklist:
- File a Verified Complaint for Declaratory Judgment and for a Temporary Restraining Order ad Injunction.
- File a Motion for Temporary Restraining Order and Preliminary Injunction and Proposed Order.
- File a Brief in Support of Temporary Restraining Order and Preliminary Injunction.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing for injunctive relief is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Brief in Support of Temporary Restraining Order

This post on drafting a Brief or Memorandum in Support of a Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist is part of my series on Injunctive Relief.
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Checklist:
- Provide a brief introduction to the facts that require injunctive relief.
- Set forth an argument that each of the requirements for injunctive relief is met:
 -- Plaintiff is likely to succeed on the merits of the claim;
 -- Plaintiff will suffer irreparable injury if the temporary restraining order and preliminary injunction are not issued;
 -- Plaintiff has no plain, speedy and adequate remedy at law;
 -- The public interest will be served by issuance of the temporary restraining order and preliminary injunction;
 -- The equities favor issuance of a temporary restraining order and preliminary injunction;
 -- Issuance of a temporary restraining order and preliminary injunction will preserve the status quo pending a trial on the merits.
- Address the amount of the bond that must be posted pursuant to C.R.C.P. 65(c).
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Thoughts & Best Practices
- TROs and Preliminary Injunctions normally issue to preserve the status quo.  If you are requesting the court order affirmative action on the part of the defendant, or enter an injunction that will alter the status quo (both are "mandatory injunctions"), it will be an uphill battle.  Mandatory injunctions are rarely entered because, if the harm is truly irreparable, then it's too late because it's already happened, and where it can be partially remedied courts tend to prefer money damages.  One of the few areas where mandatory injunctions are routinely entered is to remove a continuing trespass--for example, to remove an obstruction wrongly placed on plaintiff's property.  See, e.g., Hunter v. Mansell, 09CA0799 (Colo. App. Mar. 4, 2010).
- The proposed bond amount should be reasonable under the circumstances, as this will greatly increase the chance the TRO is entered.  However, in cases where there is truly no risk of damage to the defendant in the event a permanent injunction is denied, a minimal bond amount of $100 may be reasonably requested.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Brief in Support of a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Motion for Temporary Restraining Order

This post on filing a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist is part of my series on Injunctive Relief.
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Checklist:
- The Motion for a TRO is very brief, and should primarily reference the Verified Complaint for Declaratory Judgment and the Memorandum of Law in Support of Temporary Restraining Order and Preliminary Injunction.
- The Motion itself should also state that the motion is made pursuant to C.R.C.P. 65.
- Attach a proposed order stating the exact nature of the TRO requested.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.