Time is money, and when litigation becomes a necessity, even if your client prevails in court, the damage done while the case slowly proceeds to a victory can be hard, or even impossible, to reverse. In many of these cases, the temporary restraining order or preliminary injunction are essential tools to reduce the harm. Both the TRO and the preliminary injunction are orders that force someone to do something or which prevent one from doing something.

There are a variety of cases where filing for a TRO or preliminary injunction can be appropriate. Such diverse cases as shareholder disputes (e.g., forcing or preventing a shareholder meeting); trademark, copyright or patent infringement (e.g., preventing the infringement); the leaking of trade secrets (stopping the leak or the use of trade secrets) and noncompete clauses (precluding an employee from working for a competitor in violation of a contract) are just some examples of cases where a preliminary injunction or TRO can prevent irreparable damage from occurring during the often-lengthy litigation process.

In general, there are four elements that must be met for a court to grant a preliminary injunction or a TRO. They are: 1) that there is a likelihood of irreparable harm with no adequate remedy at law; 2) that the balance of harm favors the movant; 3) that there is a likelihood of success on the merits of the case; and 4) that the public interest favors the granting of the injunction.

In many jurisdictions, a likelihood of irreparable harm with no adequate remedy at law is the most important factor. A judge will consider how likely it is that the injury will come to pass; the nature of the harm; whether it is truly irreparable; and whether the harm, even if likely and irreparable, can be redressed with money damages. Even if a harm is almost certain to come to pass and will cause a great deal of irreparable harm, if that harm can be cured with money damages or some other remedy at law, a judge may very well find that a TRO or preliminary injunction is not warranted.

The second element, balancing of the harms, is a fact-based analysis. It is usually the case that the granting of a preliminary injunction will cause some harm to the respondent. The question is whether or not the harm to the respondent is greater than the harm claimed by the movant should the injunction not be granted. If the balance tips clearly one way or the other, a court will generally rule in favor of the party who would suffer the greater harm. If the balance is unclear, however, then courts will typically more closely examine the likelihood of success of the action, the next element of a preliminary injunction.

Whether the action is likely to succeed on its merits is the third element a court will consider. How great a likelihood is required can vary from court to court. The extreme cases are relatively clear. No judge will require an action to have a certainty, or even near-certainty of success, before they grant a preliminary injunction. Similarly, a frivolous lawsuit will never be able to satisfy this element. In between the extremes, however, there is less clarity. Some judges will require a probability of success to grant an injunction. Others require merely that the movant has raised a fair question over the existence of a right.

The final element is whether the public interest would be furthered by the granting, or denying, of the preliminary injunction. Depending on the nature of the case, this element may either be a formality, or it may be of the utmost importance. Typically, those cases that challenge a government action are those where the public interest element most often comes into play.

As a last note, it is important to recognize a few key distinctions. The critical difference between a TRO and a preliminary injunction, beyond the limited duration of a TRO, is that because of the emergency nature of the TRO, a court will typically decide whether or not the order should be granted based on the affidavit or other evidence attached to the petition, whereas, it is usually the case that a judge will hold a hearing on a motion for a preliminary injunction. In addition, in certain circumstances, a TRO may be issued without any oral or written notice, something that is not true for preliminary injunctions.

There are also tactical reasons to file a preliminary injunction or TRO that go beyond simply getting the order. Filing a preliminary injunction before the beginning of discovery may force your opponents to make damaging admissions before they have enough time to prepare. It is also worth considering whether you might be served better by a declaratory judgment. The tactical and strategic questions, however, can often be complex and difficult.