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Drafting an Effective TRO Motion

Things to be considered while filing a TRO motion is to have proper planning, understanding the facts of the case, meeting the legal standards, having knowledge of the court practices and perfectly timing the filing.

In cases that involve motions for temporary restraining orders (TRO), the ability to be prepared and to be proactive is very important.  The overall goal of the plaintiff initiating a motion for a temporary restraining order is to be ready to hit the ground running.  Although the nature of TRO litigation will limit the amount of preparation and planning you will be able to do, there are a few things you should be thinking about before moving forward.

Here are a few matters you should consider for a successful TRO motion:


Prior to Filing a TRO Motion, the entire game plan should be thought out in advance.  All possible and reasonable contingencies should be anticipated before suit is filed.  It is important that you are in a position to launch a foolproof attack before the defendant has a chance to adequately react.

Understanding the Facts

The first step is gathering information.  You need to identify and collect all evidence supporting your TRO Motion. All material facts must be supported by evidence that can either be a verified complaint, supporting affidavits or declarations. These facts must be accompanied by authenticated exhibits and supporting documentation.  Therefore, never start on a TRO motion until you have a firm understanding of the factual basis for the motion and you have identified all the supporting documents needed.  Although this may seem very casual, this is in practice a very important step as your whole motion relies solely on those first person accounts and documents.

Meeting the Standards

Second, you must identify the claims to be pursued. Consider whether your client’s goals are served by filing a TRO motion.  Analyze whether your client’s case meets the high threshold set forth to apply for a TRO motion.  Although different courts express the standards in slightly different ways, there are four basic elements you need to establish: (1) If the plaintiff  is likely to succeed on the merits, (2) If they will likely suffer irreparable harm in the absence of preliminary relief, (3) If the balance of equities tips in his/her favor, and (4)If an injunction is in the public interest.

Successes in these types of cases are based primarily on the merits and therefore you should think very carefully about the merits of your case before filing suit.  Research the laws applicable or governing your particular situation. Additionally, articulate the irreparable injury your client will suffer in the absence of injunctive relief.  You should also be able to convince the court why such an immediate relief is necessary and why compensatory damages would be inadequate.


As in every legal proceeding, timing is a crucial factor in TROs. A motion for a TRO should usually be filed at the earliest date possible.  The nature of the relief sought presupposes the need to get into court as quickly as possible and obtain immediate relief.  If this is not done, a defendant may be able to defeat the motion for TRO by asserting laches or other affirmative defenses.  On the other hand, unless the activity to be restrained is of such an extraordinary magnitude that waiting even a few days is too long, the plaintiff should try to avoid filing for a TRO on a Thursday afternoon or Friday. There is some risk that the motion will not be heard until the following week. This could cause harm to the client and delay any kind of equitable relief.   Also, if by any chance a notice is ordered, this will provide the defendant the benefit of the weekend to prepare.

Knowing the Court Practices

In a TRO motion knowing the court practices and procedures is critical.  You should be aware of how the cases are assigned to particular judges, whether the court will hear the motion on the day it is filed, or wait until the next day, etc.  It is always a good option to meet the court clerk in person to understand these practices.

Notice or Ex parte

Another important aspect is whether you want the order ex parte or to be given per notice to the other party.  It’s always better to give notice to the defendant, rather than going in for an ex parte TRO motion because an ex parte TRO motion is issued only for a limited period of time.  This means you will have to be back in court to argue the matter on merits within a short period against an opponent who has had a week or more to prepare for the hearing.  The plaintiff is far better off giving the defendant notice of a few hours before presenting the TRO.  This way the defendant will get only minimal time to prepare for the hearing. The TRO issued will typically be for a period through when the preliminary injunction motion is scheduled.  Of course the defendant can move to dissolve the TRO, after it is issued, but the burden is now on the defendant both to prepare the papers and persuade the court that it erred in its initial ruling.

Agreed TROs

 Always keep in mind that the opposite party may be amenable for an agreed TRO.  The opposite party who is caught off guard by the expedited proceedings or who lack the resources to fight at full force may be interested in such an arrangement.  The main advantage of an agreed TRO is that it is not appealable unless its terms provide otherwise.


Commonly TRO’s require a bond to be posted as security for any damage to the defendant in case it is determined that the TRO was improvidently granted.  Under the federal rules, the court must require security “in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” Therefore be prepared to provide the court a cogent valuation of what the damages would be.  Also, ensure that you have an insurance company or a bonding company lined up to issue a bond promptly.  Typically the TRO will come into effect when the bond is posted with the court.

Bigger Picture

Last but not least, it’s always good to keep in mind the consequences of filing a TRO.  The outcome of a TRO motion may have significant consequences beyond the immediate lawsuit.  For example, if you are moving to enforce a noncompete, you might think about the effect it will have on other employees as well.

– See more at: http://legaleasesolutions.com/lawstoreblog/strategies-for-a-successful-tro-motion/#sthash.eGR2lINU.dpuf

Inside Drafting an Effective TRO Motion