A Few Thoughts about TRO’s

February 9, 2015 § 3 Comments

Before you read any farther, please go back and read this previous post about TRO’s that Work.

It seems that lawyers seeking injunctive relief via temporary restraining orders (TRO’s) is becoming a more frequent phenomenon in chancery court. The scenarios are varied, but the common thread is that the party seeking a TRO under MRCP 65 wants something pre-emptive done right now.

The most problematical TRO is the one issued without notice. It’s problematical primarily because it requires the judge to issue an order that restrains the other party without the opportunity to be heard. In case you’ve forgotten since law school, that right to be heard is not only a maxim of equity, but it is also commonly referred to as “due process,” as guaranteed in the Fifth Amendment to the US Constitution, a right generally regarded as the cornerstone of our justice system.

So here are a few thoughts:

  • Judges don’t like TRO’s without notice. They go against the grain of just about everything our court system stands for. That does not mean that in the necessitous circumstance the judge will not grant it. It means rather that you can expect scrutiny, skepticism, and close questioning from the chancellor. Why can notice not be given to the party, or, in the case of pending litigation, to counsel opposite?
  • Simply pleading that this is an emergency situation does not elevate your case to the standard required by MRCP 65.
  • Your complaint must either be sworn to by the party with actual knowledge or include an affidavit of such a person. Specific facts must be stated. General conclusions, labels, supposition, speculation, and hearsay will not do the job.
  • The complaint must describe what irreparable injury will result if the relief is not granted before the other side can be heard in opposition.
  • The attorney must present a separate certificate stating the efforts, if any, that he or she has made to give notice to the other side, and reasons why advance notice should not be given.
  • If you lack any of the required essentials of R65, your request will be rejected.

Asking for TRO relief is one of those things that can take a toll on your reputation with the court. Unfounded or unsuccessful TRO attempts sound like crying wolf, and can undermine your credibility with your judge. If you have to file for R65 relief, particularly without notice, make sure the claim has merit, warrants action without notice, and will bear up under cross-examination at the full hearing.

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§ 3 Responses to A Few Thoughts about TRO’s

  • reidkrell says:

    Judge,

    The chancellors in the third district seem to be following this procedure on R65 (I have not spoken to them, but have conducted TRO proceedings in front of all three; won two, had visitation stayed in a third pending a GAL report that blew my client’s version of events out of the water, and had a fourth imposed over my objections that R65 had not even remotely been complied with):

    1) The R65 pleading requirements are “sufficiency of the pleadings” test. In short, if you plead something that would demonstrate the need for a TRO without notice, you can get in front of the judge; but all of them want you to give actual notice, even if you allege that actual notice will frustrate the purpose of the injunction.

    2) But pleading is not enough. All three chancellors would conduct evidentiary hearings on TRO proceedings, where your pleadings are tested. If the other side shows up and the judge doesn’t like your witness, you lose.

    I see from your earlier post that you rely on the pleadings alone in evaluating a TRO application. Do you require hearings?

    • Larry says:

      Only in a rare case do I require a hearing to issue a no-notice TRO. But I hold the petitioner to every technical detail of the rule, and the pleading alone must convince me of the danger of irreparable harm.

  • hale1090 says:

    It’s a good tool to stop a predator or a thief but is also used to sandbag an opponent.

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