Ah, the adrenaline rush of a preliminary injunction. The panicked client phone call; the rapid preparation of a complaint and a motion; the urgency of a response and the recognition that, practically speaking, a case might be won or lost in very short order.
There is no doubting the relative speed with which one must move to obtain preliminary injunctive relief; if one wants to preserve the status quo, briskness is required. And that same fear of irreparable harm which drives preliminary injunction analysis also drives client anxiety. The potential loss of a trade secret or key customers at the hands of a departing employee, for example, often spurs an inexorable push for extraordinary haste. No less haste and hurry are required of the responding party, which often must swiftly marshal the facts and law, file a brief, and attempt to stave off a quick win for the movant.
In this crucible, opportunities for missteps abound. A few best practices can reduce anxiety and allow for the best chance of victory.
RESPECT THE NATURE OF THE MOTION
Not every aggrieved party — even where the harm is perceived as grave — qualifies for a preliminary injunction. But it is an extraordinary remedy, not an impossible one. The law comports with common sense in that both recognize that a focused request for relief which seeks to avoid a clear wrong can present a cognizable motion. One way of thinking about it is this: absent an injunction, can a court unring the bell and deliver justice? If not, you have the makings of a good motion, and many judges are mindful of the headaches which can be prevented if a disputed act is enjoined. But if your case is not the right case to get this relief, don’t just roll the dice. It will be a bad loss right out of the gate which could undermine your client in the eyes of the court and embolden your adversary. Thus, client and lawyer must always consider whether other options exist, such as an initial cease and desist letter (which might give rise to a negotiated resolution) or pursuing expedited discovery rather than immediately filing a motion in order to present the best possible argument to the court.
BE HONEST WITH YOURSELF AND THE CLIENT
Any lawyer filing an injunction motion should warn their client of the risks and the very high burden. And a good lawyer will (tactfully) cross-examine their own client to make sure the facts are right and the defenses anticipated. This is no time for sloppiness, inaccuracies, or mischaracterizations. Once a judge concludes the movant isn’t wearing the white hat or playing fast and loose with the facts, all is lost. Additionally, because emotions can be high and time short, clients sometimes don’t tell a lawyer all the facts, which sets them up for trouble later in the case.
EXPLAIN IT PLAINLY AND MAKE IT SIMPLE
Often, an aggrieved party will attempt to spill their proverbial guts in the injunction motion, telling the court more than it needs to know and more than it can possibly digest. While a best practice for any motion, this is a particularly good time to focus on the key issues; leave out the detritus, distractions, and personal attacks; and explain clearly why the court should give you the extraordinary relief you require.
Bonus tip: consider using a verified complaint to support the factual bases for the motion, which will make motion preparation easier and help you think through carefully how the facts support the legal claims and relief sought.
YOU HAVE TO PROVE IRREPARABLE HARM
Of course you do, but this is the sine qua non of the motion and must be persuasively argued. Do not make the mistake of thinking the righteousness of your cause somehow satisfies this element. A strong showing of irreparable harm can make up for potential defenses on liability; a weak irreparable harm argument can cause the motion to be denied no matter how meritorious the underlying claim. Try your best to find an on-point case supporting a finding of irreparable harm in something akin to your case rather than relying on boilerplate statements.
DO NOT OVERREACH ON THE REMEDY SOUGHT
The more you ask for, the more opportunities to lose. Think carefully about what is essential relief to obtain and ask for that, not your client’s fantasy scenario. If you sense judicial hesitation, be ready to adjust and narrow the scope of what you request. Non-competes are particularly good examples of this because judges can be loath to toss a violating employee out of work; if the judge is wobbling, consider whether half a loaf is better than none.
DO NOT SELL SHORT THE ARGUMENTS OF THE NON-MOVANT
Drinking your client’s Kool-Aid is dangerous. You must anticipate and take seriously the defenses of the other side and consider the scope of what is at stake beyond this particular case. For example, is your contract subject to attack such that a loss also puts at risk other contracts with the same provisions? You must also anticipate the counternarrative; there is always another side of the story. For example, in a non-compete case, the employer’s counsel must understand the circumstances of the employee’s departure in order to anticipate their story that your client has unclean hands.
CONSIDER YOUR FORUM AND KNOW YOUR JUDGE
Once again — and always good advice — judges can have particular proclivities when it comes to preliminary injunctions. In terms of forum, there may be a significant difference between legal standards and practices in different states that are worth considering if you have options. And while federal courts are sometimes presumed to be more exacting in the proofs necessary to obtain an injunction, if there is solid case law in that circuit or district endorsing issuance of an injunction, it might make the difference.
DO NOT DIE ON THAT HILL
Getting a preliminary injunction is not easy, so if you don’t win, don’t give up. The judge may be very sympathetic to your client but hung up on irreparable harm; you can still win for your client. Perhaps the other side bamboozled the court to win the injunction motion; you can make sure those chickens come home to roost and swing momentum later in the case. If the injunction is granted, consider whether the ruling was tenuous enough such that the court might reconsider and either dissolve the injunction or narrow the relief. And don’t forget about the security obligations; a convincing argument can force the moving party to question whether they really want to pony up the funds. Lastly, win or lose, the initial skirmish will often permit the parties to talk settlement and the judge might suggest facilitation even before ruling on the motion; the injunctive sword of Damocles can help persuade both sides to settle.
HAVE A PLAN B
It’s all well and good to be fired up to file a motion, but what if you lose? You must anticipate what this would look like, because often in the injunction hearing itself you will have an opportunity to set the table going forward in a fashion that helps your cause, even though you lose the motion. For the non-movant, you must anticipate a potential defeat and how you can counterattack or otherwise minimize the harm done by the injunction. Show up to the hearing with arguments as to what you need and why even if the court is inclined to issue some version of an injunction.
IF RESPONDING, TAKE IT SERIOUSLY, DON’T MAKE IT WORSE, AND CONSIDER PEACE WITH HONOR
It may be surprising, but I’ve seen responding parties be almost blasé about a preliminary injunction motion. Sure, the other side has the burden, but using a lot of hyperbole and boilerplate case citations may tempt disaster. You cannot just assume a victory.
I’ve also seen respondents shoot themselves in the foot. For example, an injunction was filed to prevent a contested business transaction from closing and while the motion was pending, the defendant closed on the deal. The judge did not take that kindly and granted an injunction freezing all proceeds; the defendant never regained momentum in the case.
At the other end of the spectrum, if a lawsuit and motion are filed and your client is firmly in harm’s way, find a way to settle. The movant likely knows that even the strongest case is no guarantee of obtaining an injunction; use that uncertainty to negotiate a livable injunction or perhaps a complete resolution.