Ranking high among those quintessential things that make us American and free is the right to our day in court. If you have been wronged, and your claims have merit, it seems appropriate and just for your grievances to be heard by a judge or jury. Sometimes, your search for protection from the court may require immediate attention. Thankfully, there is a mechanism by which you may seek expedited judicial review, and a specific group of seasoned litigators (like me) who would love to go to bat for you in these instances.
In Ohio, immediate judicial review is provided through an action for a temporary restraining order (usually abbreviated as TRO) or preliminary injunction. As one example, in real estate litigation, we may seek this type of relief when an adversary has started construction that violates a client's property rights (as a court might find that a completed project is a bell that can't be unrung). This article highlights three factors to consider if you want immediate court intervention now, or in the future: (1) the basics of a TRO/preliminary injunction; (2) the level of "emergency" you are experiencing; and (3) the costs and benefits.
First things first: what do you want? In simple terms, you should want a court to stop something from happening. If that is what you want, a judge can grant a TRO immediately. To get what you want, you need to present sufficient evidence, often in the form of an affidavit, demonstrating that you will be harmed, and that there is a strong legal argument this harm should be prevented. Regardless of whether the court grants a TRO or not, the court will set the matter to be heard in a preliminary injunction hearing. This hearing will likely occur within weeks. If successful, the court will grant a preliminary injunction stopping a party from taking action until the dispute is resolved.
Next, is this an emergency? Another time-honored American tradition is waiting your turn, and a request for a TRO or preliminary injunctive relief is a request to skip the line. Note, in some instances, if you have legal rights and do not protect them quickly, that might be held against you. The question of whether you have moved too slowly is very fact specific, and it might result in a court declining to protect your rights. In other words, if you believe you are in an emergency, talk to an attorney as soon as you can.
Finally, how much money is at stake? Litigation ain't cheap, and TROs are no exception. Preliminary injunction hearings are essentially mini-trials. This means you can expect the following: witness testimony, including the right to cross examine; the presentation of evidence; and legal argument by attorneys, both in paper and in person. The court may order you, or your opposition, to drop everything and search for documents and other evidence in a fraction of the time typically permitted. Additionally, the court may require you to post a bond, which means paying a deposit to the court to protect your adversary in the event you are ultimately unsuccessful. All of this sounds expensive because it can be.
Figure out how much you stand to lose if you don't act, and speak with an attorney to determine how much it will cost to move forward. Of course, your odds of success play an important role in the analysis. Little in life is certain, but a seasoned attorney can help you evaluate the strength of your claims.
And while you are calculating your odds, also consider whether you can resolve the dispute outside the courtroom. In litigation there is typically a winner and a loser, but a pre-suit settlement can eliminate the risk of loss and guarantee some level of victory. Pre-suit resolution also eliminates the emotional toll of litigation. You can be just as vindicated in pre-suit resolution without the hit to your bank account. Pre-suit resolution is another skill a seasoned attorney brings to the table.
Originally Published by Cincinnati Business Courier
If you are considering pursuing a TRO or preliminary injunction, consult with legal counsel to evaluate your options.
