§65.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§65.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Injunctions are an extraordinary remedy and should be approached in that light because they are easy to lose, difficult to obtain, and strategically risky. Timing is critical—in some instances, the entire case can be won or lost at the injunction stage. In many cases, future damages may pale in comparison to the harm of the ongoing activity. Because of time pressures surrounding the proceedings, there is not the luxury (or burden) of protracted discovery.

Success in obtaining a temporary restraining order or a preliminary injunction requires the expeditious and effective marshalling and presentation of facts, law, and equities. Because an injunction before trial is extraordinary relief, it should be sought only when a strong case can be made for need and the circumstances justify the type of effort required by a real crisis. A weak claim for pretrial injunctive relief, or a halfhearted presentation, wastes a client's money and the court's time, and dissipates counsel's credibility.

(1)Assessment of need

The first consideration in determining whether injunctive relief should be sought is whether such relief is actually needed. The lawyer's task is to assist his or her client in making a sound decision on need, despite limited facts, great time pressure, and strong emotions. Because the proceeding is an equitable one, counsel must assess the "cleanliness" of his or her client's hands and the equities surrounding its case. An initial determination must be made whether emergency relief is truly necessary, and counsel owes the client an objective assessment of this issue. If so, a temporary restraining order is appropriate. However, in all but the most extraordinary case, a preliminary injunction is usually sufficient.

In some instances, failure to seek a restraining order or preliminary injunctive relief may waive client's right to later challenge a contested action. Plein v. Lackey, 149 Wn.2d 214, 67 P.3d 1061 (2003) (failure to seek preliminary relief enjoining foreclosure and trustee's sale waives objections to such sale).

(2)Where to file

Determination of the appropriate forum for filing is important in several respects. First, there are substantive differences between federal and state court and, indeed, among the different states and federal circuits, concerning the standards for granting an injunction, rights of appeal, and the like. Second, there may be substantive law differences...