Dawson, pp. 98-100: Comment: Equity Relief in Advance of Trial

 

A remedy aimed at direct a party to do or not do something as opposed to exacting money damages from the party is called “equitable”.  There is more on equitable relief later.  Here, the authors talk about pre-trial court orders.

 

There are two types:

 

1.     Temporary restraining orders (TROs)

2.     Temporary injunctions

 

TROs can be issued without any notice to the defendant and without the opportunity for a hearing.  The need of the plaintiff must be very compelling.  Usually TROs last not more than ten days.

 

If the plaintiff still needs protection, they’ll go for a preliminary injunction (AKA temporarily injunction, interlocutory injunction, or injunction pendente lite).  The idea of this is to keep things as close to the way they are as possible in order to assure that the plaintiff’s harm can be corrected where it might not be possible otherwise.

 

The court has to balance the costs and benefits to the plaintiff and defendant to figure out whether these equity orders are appropriate.

 

These types of orders don’t fit well with due process.  Therefore, there are a few safeguards.  The plaintiff sometimes has to put down money for an “injunction bond” which basically guarantees that the defendant won’t be hurt if the injunction is struck down.  Also, in some jurisdictions you can actually appeal an injunction even though it isn’t a “final” decision.

 

These types of orders give more power and flexibility to trial judges.  But sometimes they can heavily burden defendants.  It is hard to review trial judge’s decisions about equity relief in advance of trial, but the appeals court might yell at them if they don’t do the right thing.

 

The main reason to issue orders like this is to preserve the status quo.

 

The way to enforce such orders is through fines for contempt of court.  These have two limitations:

 

1.     A court can only issue contempt fines to those within its jurisdiction.

2.     Only the court of which someone has “been contemptuous” can punish.

 

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