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.