The banner headline on the morning news boldly proclaimed “Judge Stops Eviction.” The video above it showed a half dozen moving vans standing in the dark outside Richmond City Hall, until recently the home of the Richmond School Board. The power struggle had been brewing for weeks, with Mayor Wilder, a former Virginia governor, trying every tactic in the book, and a few extras for good measure, to harass and hinder the opposition-led school board. As the news story continued, I saw the school superintendent complain bitterly about the mayor’s attempt to evict the school board over strong opposition. “He won’t get away with this,” she vowed, adding that “We won today because the law was on our side.”

As I watched the news that early Saturday morning, my thoughts wandered to the dozen or so exhausted trial lawyers I knew were watching along with me, too wired, too exhilarated, or too depressed to go to sleep yet. They had just gone through a judicial proceeding that truly tests the mettle of any litigator, seasoned or novice: the motion for temporary restraining order, or TRO.

If you watch or read the news at all, I’m sure you’ve run across a TRO or two, whether you knew it or not. When Pamela Anderson and Tommy Lee sued to prevent their sex tape from being released, that was a TRO. When everyone was fighting over Anna Nicole Smith’s body, that was a TRO. When, some years ago, the NFL Players Association sued to prevent the Washington Redskins from playing a home game because the Redskins allowed non-union players on their roster, that was a TRO, one of the first I ever worked on. Whenever something needs to be done now, or stopped now, the legal answer is almost always the TRO.


To really understand the TRO process, you need a little basic knowledge of America’s common-law judicial system. The first thing you need to know is that we Americans didn’t invent it. We borrowed it. From Great Britain, of course. And although the legal systems of the two nations have developed independently for the past 200 years or so, some of those early British roots remain embedded in the U.S. legal system today. In fact, some U.S. jurisdictions (the Commonwealth of Virginia is one) consider British case law to be binding precedent provided it predates the split between the two systems.

Another area where America’s British roots show is the traditional division between law and equity. As far back as I’ve ever seen, British law recognized two different kinds of courts: courts of law, where money damages are the only appropriate remedy; and courts of equity, for everything else. The underlying reason for this division is land, pure and simple. Land, and its ownership, has always been the mark of class distinction. Those with land were the haves, those without, the have-nots. Because land was such a mark of privilege, and because each plot of land was deemed to be unique and irreplaceable, loss or injury to land was said to be irreparable at law. In other words, simple money damages weren’t considered sufficient. Other remedies were needed.

That’s where the courts of equity came in. Their primary function was to fashion remedies -- aptly called equitable relief -- to deal with situations where money damages just wouldn’t do. Courts of equity developed separately, giving rise to a set of equitable rules and terms wholly distinct from those used in courts of law. Where courts of law had judges, plaintiffs and defendants, for example, courts of equity had chancellors, complainants and respondents. Where courts at law imposed a legislated (i.e. legal) statute of limitations, courts of equity applied the looser, judicially determined defenses of laches or estoppel. While either party in an action at law could ask that their dispute be tried to a jury of their peers, in equity the chancellor was the sole trier of fact and law. And the courts of equity -- which, as their name implied, were concerned with concepts of fairness and equity -- developed several unique doctrines of their own, the doctrine of unclean hands (“He who seeks equity must do equity”) being a prime example.

Relief in equity could, in theory, take whatever form the chancellor deemed necessary. When Solomon decreed that the disputed child be torn asunder, he was exercising the sort of discretion that would later find its way into British and American courts of equity. Of course, equitable relief in your typical case today rarely takes such an extreme form. Much more typical is the injunction, which basically orders a party before the court to take, or refrain from taking, some action decided by the court rather than pay a specific monetary amount as damages. Specific performance in a real estate contract -- ordering a party to sell a disputed parcel of land pursuant to a prior sales agreement -- is the standard example used in law school texts.


Well, that’s all well and good, you might say, but what does it have to do with Mayor Wilder trying to evict the Richmond School Board this past weekend? Quite a lot, it turns out. You see, the judge in that case didn’t just “stop” the eviction. He or she entered an order (possibly a “decree” if the case were filed in Virginia Circuit Court) that resolved certain issues presented by the parties within a very specific framework. It was not an open-ended, formless process, and the school board did not just send the judge a brief with the word “Help!” written on it.

Instead, they likely filed a piece of paper entitled “Motion for Temporary Restraining Order” or “Application for Preliminary Injunctive Relief.” I say “likely”” because I haven’t actually seen the papers filed. But based on my experience with this process, I’ll bet you dollars to donuts that’s what happened. They also likely filed a complaint (or Bill of Complaint if they filed in Virginia state court), a document necessary to establish the case in the first place. Without a complaint, there is no case number and no assigned judge, and no brief, no matter how artfully written, can be filed.

Why is this important? Because it means that a plaintiff seeking a TRO has a lot of work to do to get the job done right. You see, while the motion itself is focused on the event happening right now, the complaint necessarily looks to the facts and issues for the entire case, including any events or issues that might be involved well into the future. A victory today might well be lost tomorrow if the complaint isn’t properly framed.

But suppose the plaintiff has done his job, and the complaint is in decent shape. What will the accompanying motion for TRO look like? In the Richmond School Board case, the motion would likely follow the framework laid out in an oft-cited Fourth Circuit case, Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977). Under Blackwelder, a court considering a motion for TRO must consider four factors: (1) the likelihood of irreparable harm to the plaintiff if the TRO is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest in general. These factors are considered together, so that a plaintiff with a greater likelihood of success on the merits (otherwise known as a “slam dunk”) bears a lesser burden to show a balance of harms in his favor, and vice versa. The U.S. Court of Appeals for the Fourth Circuit happens to be the federal circuit with jurisdiction over Virginia, but the other federal circuits apply similar tests, as does the Virginia Supreme Court.

Note that the Blackwelder factors speak of “irreparable harm” to the plaintiff if the TRO is denied. That means irreparable at law (i.e. money damages will not suffice), the very requirement for relief that courts of equity traditionally applied. Examples of such irreparable harm? A developer is about to break ground on a new strip mall in the middle of a Civil War battefield tomorrow. Someone is about to publish a magazine article saying that you're a convicted felon when in fact you're not. Your ex-wife is about to melt down your grandmother's antique wedding band to make fillings for her toy poodle's teeth.

OK, that last one was a stretch, but you get the idea. On the flip side, if you’re trying to get a TRO, and you can be made whole simply by cutting a check, you’re out of luck. But if you're able to meet the “irreparable harm” test, the Blackwelder factors essentially instruct the court to handicap the final outcome of the case, consider the balance of harms to each party, and consider the greater public interest, if necessary.

That remaining factor, the “public interest in general,” is often a throwaway. As important as cases like these may seem to the parties involved, rare is the case that rises to the level of genuine public concern. There are, of course, exceptions. In the Redskins case I mentioned previously, for example, we successfully argued that the negative economic impact on the community -- lost revenues from concessions, vendors, dining, parking and the like -- weighed heavily against the requested TRO. In another case I worked on, a competitor was spreading misinformation about the products of one of my clients, a pharmaceutical company. There, we obtained a TRO against the competitor, and stopped the spread of misinformation, by pointing out the serious public health risk posed by such misconduct.

Although the public interest -– or, more specifically, the interest of third parties not present before the court –- is not typically a major factor in a TRO analysis, when it is relevant it is often dispositive. That is because courts are loathe to enter orders that will harm or injure those who aren’t there to represent their own interests. This desire to protect innocent third parties is a common theme running throughout American jurisprudence, one all good litigators should consider. When a third party’s interests can be pressed in aid of your own client’s case, you’ve got a winner.


Now that we are familiar with the framework for a TRO, we can look at the Richmond School Board case in the proper context. Why did Mayor Wilder lose? What, if anything, could he have done differently?

The first thing that comes to my mind, being the smartass that I am, is that he should have chosen a different opponent. The School Board runs the schools, the same schools that teach our kids, the same kids that represent our future. Assuming that the school board hasn’t stolen funds or otherwise wrecked the school system, trying to evict them from City Hall at 5:00 Friday afternoon was like beating up on the Sisters of the Poor. Not much sympathy there.

But, hey, you take your parties as you find them, right? So, assuming that Mayor Wilder just had to take on the School Board, what could he have done to improve his chances? As simple as this sounds, he could have waited until Saturday morning to make his move. The School Board’s best legal arguments would have been completely useless if there had been nobody in the courthouse to hear them (or at the law firm to make them). By pulling the moving vans up to City Hall at 5:00 Friday afternoon, Wilder gave the School Board the precious time it needed to mount its attack.

That’s because the major consideration behind the court’s decision to stop the eviction was apparently the disposition of, and possible harm to, the confidential records of thousands of students and their families. That’s the “harm to third parties” idea mentioned earlier, by the way. These confidential records, maintained at the School Board’s offices, were part and parcel of the furniture and equipment in the process of being moved, and I guess the thought of a guy in a “Don’t Fuck With Mr. Zero” T-shirt laying his hands on little Johnny’s school records during a rushed midnight move was just too much for the court to bear.

If Wilder had waited a few hours, it would have taken longer for the School Board to respond, and longer still for the court to consider the matter and act. By then, the student records might well have been moved already, rendering the issue a fait accompli. As it turned out, though, the records were still sitting in the School Board offices when the order came down. Result?

School Board: 1 Mayor: 0.


A brief postscript. Since last weekend, City Council has taken up the School Board’s fight, and public opinion is running strongly against the Mayor’s actions. What was to be an eviction under cover of night has become an open power struggle threatening the mayor’s position and possible future career. Moral? If you’re going to screw somebody, do it fast. Otherwise, you might get that infamous “court order” slapped on you.

Source

  • Fourteen years at the bar.

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