Temporary Restraining Orders, Part II – Fast Track Litigation in an Emergency – The Practical Side
Thomas W. Hartmann
The Hartmann Law Firm LLC
TheHartmannLawFirm.com; [email protected]; 908 769 6888
In Part I of this newsletter, I discussed the substantive law associated with temporary restraining orders or TROs. Here, we focus on some practical aspects. The guiding procedure is set forth in New Jersey Rule of Court 4:52.
What Type of Case. There are a few hard and fast rules about the type of case that might involve a TRO. The Comment section of Rule 4:52 explains that one cannot get TROs for legislative action, enforcement of criminal laws or restriction of free speech or picketing. On the other hand, the Comment lists abuse of legal process, illegal work stoppages, enforcement of restrictive covenants and non-compete agreements, trespass, and nuisance as instances in which a TRO might be appropriate.
We have also used it effectively in business matters when someone is stealing business assets or when a party has taken product across state lines and issued bad checks on multiple occasions.
The key is to have an emergency situation involving irreparable harm and likely success on the merits. In shorthand, you must show the court you are right and that you have no way to stop the wrong against you except through the court.
What to Prepare. You need the following documents:
- Verified Complaint
- Affidavit of Client
- Brief in Support of Motion for Temporary Restraints
- Proposed Order to Show Cause with Temporary Restraints and
- Case Information Sheet
The complaint must be verified – signed by the client. You may not have time to get an original signature, and courts appear to accept a copy, as long as the attorney has signed his parts in original. The client affidavit lays out what happened. The brief is similar to a motion brief and explains how the facts support the legal requirements of a TRO.
The form of Order to Show Cause is found in Appendix XII-G or H. You can find it on line for ease of completion.
Call First. Call the clerk's office and speak to the law clerk of the judge who initially reviews the filings. In some vicinages, one judge takes all the TROs. In others, one judge takes them in, reviews them, and then assigns them to another judge.
Learn the local procedure and how long you might have to wait. In some cases, you can get relief when you file. In other cases, it might take more time. Depending on the circumstances, the judge may give you instant temporary relief or just to hold things where they are until he can set up a hearing, whether in person or by phone. Your initial call into the court and your conversation with a law clerk can lay the ground work for the seriousness of the issue.
Be sure you hand carry things to the court. Do not mail things. If the matter really is serious, mail is far too slow and sends the court the wrong message.
Service. Serve your opposition as soon as possible. Consider multiple forms of immediate service – fax, email, courier. Again, this shows the court you are serious and that you are making every effort to follow legal procedure. Rule 4:52 even refers to “notice … informally given.” If the opposing side tries to evade or ignore service, at least you will be able to show the court that you have gone out of your way to insure notice. The evasion or failure to respond may further support the need for a TRO.
Have the Client Available. This is an emergency. Assets are being lost and legal rights are being flaunted. The client, the truest party in interest, who is suffering the loss, should be available and ready to inform the court exactly what is happening, should the court require more than the written record. This can have great impact on the court.
Not Easy. While TROs are never easy to obtain, preparation is the key. Focus on what you need, assemble it and get to the court as soon as possible to find the one source of fast, just, firm relief.
The Hartmann Law Firm LLC can assist in these matters to insure your business and your assets are protected. Beyond this, we can help guide businesses through issues ahead of litigation or aggressively advocate in litigation and business disputes should the need arise.