Affirmative Defenses (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses.  This list is updated continuously, but certainly isn't complete--if you have a suggested addition, please contact me or comment below.
--
C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
-
Checklist & Best Practices to Consider:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
***DO NOT PLEAD A LAUNDRY LIST.  As stated above, the vast majority of these affirmative defenses will not apply to any given case--they are intended as a brainstorming tool, and certainly should not be included in full.  Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.
-
List of Affirmative Defenses (Partial):
- failure to state a claim upon which relief may be granted (almost always use)
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
- fraud in the inducement
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- necessity
- execution of public duty
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party

- implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)

- failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
- fair use (copyright).  See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).  (hat tip Bill Shea)

- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
- ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)
- 
Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Discovery of Social Media Information: Privacy, Authentication, and Practice Tips

Last week’s blog post briefly discussed the evolution of FRCP 34 as it relates to the admissibility of electronic compilations of data for discovery purposes, and how social media, with its cache of potentially discoverable electronic information, has impacted the e-discovery process.  Generally speaking, the courts treat social media information the same as other electronic data obtained for discovery purposes.  However, social networking sites represent a new frontier for electronic discovery and bring with them a novel set of issues to be explored. 

Not only is the admissibility of ESI from social networking sites subject to application of the Federal Rules of Civil Procedure, evidentiary criteria for electronic data are further defined by the Federal Rules of Evidence (addressing such matters as relevance, authenticity, prohibition on hearsay, reliability, probative value, etc.). Case law provides a significant repository of information related to the discoverability of social media, including decisions related to privacy; First Amendment issues; Fourth Amendment issues; application of the Federal Rules of Civil Procedure and Federal Rules of Evidence; duty to preserve/spoliation of evidence; and authentication.  Two of these issues are frequently litigated: user privacy rights and authentication of data.

Privacy issues are complex, and discovery of social media raises not only First and Fourth Amendment issues, but may also involve the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2701 (1986) (also referred to as the “Stored Communications Act” (“SCA”)). Courts are grappling with the role of traditional privacy rights as they relate to discovery of social media and have found that individuals generally do not have a reasonable expectation of privacy with regard to information they provide on social networking sites.

In Ledbetter v. Wal-Mart Stores Inc., 2009 U.S. Dist. LEXIS 126859, No. 06-1958 (D. Colo. Apr. 21, 2009), plaintiffs filed a personal injury action against defendant Wal-Mart, alleging physical injury, mental trauma, and loss of consortium.  Defendant subpoenaed Facebook, MySpace, and Meetup.com to obtain Plaintiff’s personal information, and plaintiff filed a motion for protective order claiming physician-patient and spousal privilege. Magistrate  Judge Watanabe denied plaintiff’s order, finding that the information requested in the subpoena was relevant and reasonably calculated to lead to the discovery of admissible evidence.

With regard to authentication of ESI from social networking sites, some courts have suggested that the ease with which social media data can be manipulated creates the need for a higher standard of authentication.  So, while ESI from social networking sites can be discoverable, it is not considered to be self-authenticating. In Griffin v. Maryland, No. 74, 2011 WL 1586683, at *1-10, *4 (Md. Apr. 28, 2011), the Maryland Supreme Court found that the State failed to provide extrinsic evidence to properly attribute a MySpace profile and postings to the purported author, and remanded the case for a new trial.  The court stated that "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password."

E-discovery cases continue to grow in number and complexity, and federal e-discovery decisions are sometimes inconsistent. Internet usage should be given a high priority when advising clients as the potential for a client to damage their own case is very real. Alternately, social media provides fertile ground for the discovery of useful information about adverse parties.

Some practice tips to consider:

1.         Before issuing a subpoena to a social networking site, seek discovery of social networking information from the opposing party first.

2.         Public searches yield a surprising amount of information about which social networking sites a user participates in, what their user profile includes, and what type of information they are posting.

3.         Be cautious of hiring a private investigator to “friend” the opposing party on any social media sites.  And certainly don’t attempt to contact the opposing party yourself via any SNS.  Such approaches are likely to backfire, may constitute impermissible communication with a represented party, and are likely unethical if they involve deceit.

4.         Take care to avoid spoliation of evidence—as soon as claims are reasonably known to exist, prepare a plan with your client to preserve any social networking information that may be relevant.  It’s likely insufficient to assume that the social networking provider is maintaining an archive of posts and information—you or your client should preserve and maintain an archive of this information on a regular interval.

5.         When a claim does arise, notify the opposing party with the specifics of what social networking information you anticipate will be relevant in this case and instruct them to ensure this information is properly preserved.

6.         Remember – just because something is available electronically doesn’t mean that it can or should be produced instantly.  It may not even be subject to search.

7.         If your case is very complex, consider “unbundling” discovery tasks. Consider assembling a litigation management team to tackle electronic data discovery tasks.

8.         Maintain at least a general familiarity with developments in social networking in order to properly advise clients about how recent changes and developments may alter these recommendations.

9.         Plan in advance for proper authentication of electronic information obtained from social networking sites.  Consider whether it is appropriate to authenticate this information at an individual or 30(b)(6) deposition.

I will be posting more about the unique challenges posed by discovery of electronic information from social media networking sites, including ways to authenticate electronic data.  I’ll also address issues related to the preservation and spoliation of electronic evidence (including Tweets and text messages, to name just a few of the many sources of electronic evidence).

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Written Discovery: Re-Thinking the Definition of "Documents" in the Social Media Age

The social networking era presents attorneys with new challenges that directly affect client representation.  Law dealing with electronic discovery obtained from social networking sites is currently in a state of flux, and attorneys need to be familiar with which types of electronic data are discoverable. The answer is not always clear.

What is clear is that information stored on social media sites is becoming increasingly critical in litigation.  What may have once been a communications medium primarily used by youth is now a mainstay of business communications.  New sources for potentially discoverable social media information include Facebook profiles and messages, Twitter “tweets” and direct messages, LinkedIn profiles and messages, information on Google+ and countless other social media services.

While there may be complications in compelling discovery from some of these sources, at a minimum the definition of “documents” used in written discovery requests, as well as the specific text of requests for production, should specify that the information sought includes these categories of information.  Before discovery even begins, parties should ensure that litigation hold letters sent to their own clients as well as opposing parties also specify that these categories of social media information are likely to be relevant to the disputes in a given case and that they must be appropriately preserved (and preservation of social media is another emerging field—something that I will cover down the road).

To date, there are no new discovery rules that specifically govern social media.  Old rules are being applied to new technology, and the approach of the Courts has generally been to treat social media information the same as other electronic data obtained for discovery purposes.  Federal Rules of Civil Procedure 26, 30, and 34 apply, and in effect broaden the definition of paper documents to include social media information as discoverable electronic data.

FRCP 34(a) was amended in 1970 to include discovery of data compilations.  Dramatic growth in the type and volume of electronically stored data resulted in further amendments to Rule 34 in 2006, to more clearly define discovery of electronically stored information (“ESI”) as being the same as discovery of paper documents. Rule 34(a)(1) is expansive, and is intended to be broad enough to cover the types of ESI available in 2006, and flexible enough to cover future technological developments. Rules 26(b), 26(c), and 34(b) provide guidance on whether and in what form ESI should be produced.  Therein lies the rub -- social networking sites contain a potential treasure trove of discoverable electronic data – but when does this type of data fit the traditional definition of the term “document” and what factors come into play in making such documents admissible evidence?  Lawyers and Judges are only just beginning to navigate this complex realm of discoverable information.

Two key issues are at play when it comes to discovery of ESI from social networking sites. First, what right to privacy do users have when personally expressing themselves in this new area of communication?  Second, because the type of data available on social media can be easily manipulated, what steps should be taken to authenticate data obtained from social media?  Answering those questions and meeting the criteria set forth in the Federal Rules will bring us closer to defining the term “document” as it relates to discovery of ESI from social media.

My next post will address the issues of privacy and authentication of social media discovery.  The courts have held both for and against protecting a users’ privacy, and have suggested that discovery of ESI from social networking sites be held to a higher standard, given the ease with which it can be manipulated.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Written Discovery Requests: Preliminary Statements and Objections

This post is part of my litigation checklist.

Responding to discovery requests can be time consuming but requires considerable care.  If you’ve been diligent in developing and strategically executing your discovery plan, responding to discovery requests is much easier.  As you make your way through the process, it’s essential to keep in mind some potential pitfalls:

-        If written response to discovery is not made timely, any objections you may have, including claims of privilege, may be waived.

-        If a written discovery request is proper, do not withhold evidence or facts that are favorable to your case.  Failing to produce such information may preclude you from using it at trial. When responding, be sure to produce all information that you have or that can be reasonably obtained.  

-        Don't delegate the drafting of discovery requests to  your client.  They likely do not fully understand the language that is customarily used to respond to discovery requests, or the vital importance of a careful responses and objections, and it is incumbent upon you to make sure this is properly handled in your discovery responses.

Responses to written discovery requests normally start with a preliminary statement and objections.  While much of this is boilerplate, and I am not a fan of preliminary statements that run several pages, it can be helpful to set up preliminary objections to provide a fall-back in the event you fail to make a specific objection to a discovery request that becomes and unanticipated disputed issue at a later date.  Additionally, well-crafted preliminary statements and objections can facilitate shorter and more pointed responses to specific discovery requests, actually saving time and space in the long run.

A template saves time and is customizable to the needs of the case.  The following is some suggested wording: 

GENERAL OBJECTIONS

1.              Plaintiff objects to Defendant’s Interrogatories, Requests for Production, and Requests for Admission to the extent that they incorporate or set forth definitions,  instructions, or requirements that attempt to impose upon Plaintiff burdens and obligations beyond those contemplated by the Colorado Rules of Civil Procedure.  Plaintiff will respond as required by the applicable provisions of the Colorado Rules of Civil Procedure and any purported instructions, definitions, requirements, or requests to the contrary will be disregarded.

2.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek information protected by attorney-client privilege or work product doctrine.

3.              To the extent any Interrogatory can be interpreted as requiring Plaintiff to identify or produce any document or set forth any information which is in the possession, custody, or control of Defendant or otherwise, that has been available to or is otherwise not in the possession of Plaintiff, or is equally accessible to Defendant,  Plaintiff objects hereto.

4.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek documents or information not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence.

5.              Plaintiff has not completed discovery, investigation, or preparation for trial in this matter. Accordingly, documents and information are provided without prejudice to Plaintiff’s rights to make further objections and present additional information and documents which are hereafter discovered or which further discovery and investigation may indicate are relevant to this action and called for by Defendant.

6.              These general objections apply to each and every one of the following responses and objections, and failure to repeat an objection in response to a specific Interrogatory, Request for Production, or Request for Admission shall not be deemed a waiver of these general objections.

These General Objections are precisely that – general.  In particular, the blanket objection to attorney-client privilege and attorney work product should only be seen as a fallback position, and the contingent "to the extent" phrasing likely will not suffice--it's best to specifically object to each instance where there are responsive materials protected by privilege or work product.  It is generally still necessary to object to a specific interrogatory, RFA, or RFP.  The objection must be applicable to the case, stated clearly and concisely, and supported by legal authority.  And while a Pulitzer Prize has never been awarded for an objection to a discovery request, in the event a discovery dispute arises a judge is more likely to take note of clearly-stated, fully-supported objections, and will appreciate the careful analysis and attention that you have given to your response.

Responding effectively to requests for discovery can require many hours researching cases that support your position that a discovery request is overbroad, burdensome, vague, oppressive, subject to attorney-client (or other) privilege, or not likely to lead to admissible evidence. To this end, in the coming weeks I will be writing a series of articles that will address some of the common objections that are made to discovery requests. Hopefully this information will help make the task less cumbersome and daunting, and will assist you in tailoring your objections to some of the most common discovery issues.   

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Complaint

This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  A Complaint is used to initiate a lawsuit.  Before filing, an attorney should consider at a minimum the following:
-
Checklist:
- Pre-Complaint Investigation
- Review potential claims and their elements
- Ensure there is factual support, or a good faith belief that you will obtain factual support, for each element of each claim
- Ensure that a federal court Complaint meets the standard set forth in Twombly
- Even if the complaint will be filed in state court, there are reasons to still ensure it meets the Twombly pleading requirements
- Special considerations for complaints against multiple defendants
-
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
-
This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Motions to Dismiss

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of filing motions to dismiss in Colorado and Federal courts--where the governing rules and procedures are similar, these checklists will focus on motions in Colorado state court and will not significant differences for filings in Federal court.  As each of the following checklists are completed, I will link to them from the text below.
-
C.R.C.P. 12(b) provides the legal basis for motions to dismiss.  A motion to dismiss may be filed for several reasons, and against several types of claims--each with their own checklist below.
-
Motion to Dismiss Checklists
- Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Rule 12(b)(2) - Motion to Dismiss for Lack of Personal Jurisdiction
- Rule 12(b)(3) & (4) - Motion to Dismiss due to Insufficiency of Process or Insufficiency of Service
- Rule 12(b)(5) - Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
- Rule 12(b)(6) - Motion to Dismiss for Failure to Join a Party Under Rule 19
- Special Considerations:  Motion to Dismiss Counterclaim or Crossclaim
-
Other Related Motions:
- Rule 12(e) Motion for More Definite Statement
- Rule 12(f) Motion to Strike
- Motion for Judgment on the Pleadings

Best Practices

- In Colorado, if a motion to dismiss is granted that dismisses the entirety of an action brought by one party containing claims in tort, then an award of attorneys' fees is mandatory pursuant to C.R.S. § 13-17-201.  An award of attorneys fees is mandatory whenever all claims by one part against another are dismissed, even if other claims remain unresolved.  See Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).
- Always consider the value of dismissing certain claims--for example, even if a complaint's lone tort claim is vulnerable to a motion to dismiss, is it more valuable to keep the claim alive for purposes of insurance coverage issues?
- In responding to a Motion to Dismiss, consider whether it is wiser to voluntarily dismiss the claims without prejudice to avoid a mandatory award of attorneys fees, fix the deficiencies in the complaint highlighted by the motion to dismiss, and refile.  Always consider statute of limitation issues and other potential bars to re-filing.
- While most courts will write their own order addressing a motion to dismiss, it is still wise to file a simple and direct proposed order with the motion (or response in opposition).
-
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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.
-
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.
-
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
-
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.
-
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).
-
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.
-
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
-
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.