Sunday, July 22, 2018

What's a Preliminary Injunction?

It is not at all uncommon for a plaintiff in a lawsuit to ask a court for a preliminary injunction. So, what’s a preliminary injunction?

An injunction is an order from a court instructing a person to do something or to refrain from doing something. For example, say your local zoning board has refused to issue a permit, but you think that under the law you’re entitled to the permit. If a court agrees, it could issue an order to the zoning board commanding the board to give you the permit. That order would be an injunction.

But what about a preliminary injunction? Preliminary means something that comes before the main action or event. In lawsuits, the main event is the trial. So, a preliminary injunction is an injunction that a court issues before trial.

It sounds simple, but this is actually somewhat surprising and kind of a big deal. Why? Because the trial is when the court decides who wins and who loses the case. Issuing a preliminary injunction means that the court is ordering someone to do something, even though who will be the ultimate winner and loser is still up in the air.

Everyone is entitled to their day in court, and it’s kind of unfair to treat someone like they’ve already lost before they had a full hearing. Nevertheless, sometimes preliminary injunctions are necessary to make sure that the court’s decision in a case has a real impact and doesn’t become just an academic exercise.

Imagine, for example, that the city has decided to build a freeway through the middle of your house. You like your house and would very much prefer not to have cars traveling at high speeds through your living room. So, you sue the city, but you have a problem. The city’s bulldozers are on their way to knock your house down, and your trial is still a year away. What to do?

You guessed it. The answer is to get a preliminary injunction and have the court order the city to stop its bulldozers from flattening your house. The court order keeps your house standing until a trial can sort out whether the city has the right to knock it down.

In other words, the purpose of a preliminary injunction is not to give one side an advantage over the other, but rather to preserve the parties’ positions until a trial can figure out who is right under the law. Because preliminary injunctions have a tightly defined purpose and because they ask the court to take a significant action without the benefit of a trial and a final judgment, preliminary injunctions are hard to get. Courts have described them as an “extraordinary remedy” that will be granted only if certain conditions are met.

What are those conditions? I’m glad you asked. There are four.

First, the plaintiff must show a likelihood of success on the merits. In other words, the plaintiff must show that she is likely to win the case when she gets to trial. People with weak cases don’t get preliminary injunctions.

Second, the plaintiff must show that, without the injunction, she will suffer irreparable harm. A harm is irreparable if there is no way for it to be fixed later. If a bulldozer knocks down your house, there is no way to put the house back together again just as it was.

Lots of injuries can be fixed by money. But some things are unique, and the irreparable harm idea is to give protection to things that once lost or broken can never adequately be repaired.

Third, the plaintiff must show that the balance of the equities tips in her favor. This is a fuzzy concept, but it gets at the idea that if the plaintiff has acted badly or has created the problem herself in some way, then she doesn’t deserve extraordinary help from the court in the form of a preliminary injunction.

For example, if the plaintiff hastily constructs a shack directly in the path of the city’s bulldozers, a court might decide that the danger to the structure was self-inflicted, and so the equities tip against giving the plaintiff a preliminary injunction.

Finally, the public interest must support the issuance of the preliminary injunction. This factor is also a little squishy, but it gets at the idea that in some cases, more people than just the parties to the lawsuit have an interest in the outcome, and since a preliminary injunction is an extraordinary remedy, the court should only issue one if doing so is in the public interest.

So, what’s a preliminary injunction? It’s an extraordinary order from a court, issued before trial, commanding a party to take an action or to refrain from taking an action that can be obtained only by showing (1) a likelihood of success on the merits, (2) irreparable harm, (3) the balance of the equities, and (4) the public interest.

And that’s it. If you had ever wondered what a preliminary injunction was, now you know .

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