Law Tips: Litigating Injunctions – A Practitioner’s Checklist

“When all else fails, appeal.”  That’s #25 on our faculty member, Tony Paganelli’s, practitioner’s checklist.  We are pleased to look further at Tony’s “Litigating Injunctions”  pointers on this week’s Law Tips.

Anthony Paganelli, Taft Stettinius & Hollister LLP, Indianapolis, takes lead counsel roles in lawsuits and arbitrations across the United States.  His work is largely concentrated in business and real estate disputes, fiduciary disputes, and white-collar criminal defense.  ICLEF appreciates Tony contributing his expertise as a faculty participant, including the materials used as our reference here that are taken from the “Covenants Not To Compete” CLE.

In one portion of his checklist he shares advice on “Litigating a Preliminary Injunction (“PI”).” Those succinct pointers, #19 through #25, follow:

#19. Think of the PI hearing like a trial.
A PI hearing is an evidentiary hearing that functions almost exactly like a trial.  You should treat it like one.  Likelihood of success on the merits is much more important here than it is at the Temporary Restraining Order (TRO) stage, so you should be prepared to present and win your entire case at this hearing.  Also, evidence admitted at a PI hearing is deemed admitted at trial and need not be offered again.  Finally remember to make your record for appeal.

#20. Think about expediting the trial on the merits.
Trial Rule 65(A)(2) allows the court to advance the trial on the merits and convert the PI hearing into the full-blown trial.  This is useful if you think your opponent won’t be prepared to litigate the entire case on an expedited basis.

#21. Don’t lose sight of irreparable harm and the other elements of injunctive relief.
Even though success on the merits moves to front-and-center at the PI stage, a party moving for a PI still must prove all of the other elements in order to get an injunction: inadequacy of a remedy at law, balance of harms, and effect on the public.

#22.  Don’t forget about the bond.
The bond, so critical for the TRO, is often forgotten at the PI stage.  If you’re the moving party and you obtained a TRO, remember to ask that the court allow the same bond (or a lower one) to remain in place to secure your PI.  If you’re opposing the PI, you get a second chance to explain why the bond should be as large as possible.

#23.  Do expedited discovery.
The Trial Rules contemplate expedited discovery for injunction cases.  Ask for it as soon as possible, even before you have a date for your PI hearing.  Ask for the response deadlines to be tied to the hearing date, rather than the date the requests were served.  For example, ask that the other side be required to answer your interrogatories 14 days before the hearing, rather than 14 days after they are served.

#24.  Now, draft your killer brief.
The preliminary injunction brief is a very important part of your presentation.  A well-written brief is an important part of your presentation because the trial judge will be trying to absorb a tremendous amount of information very quickly.  He or she is likely to rely heavily on trial briefs.

#25.  When all else fails, appeal.
Under Appellate Rule 14(A)(5), orders that either grant or deny a motion for PI are immediately appealable on an interlocutory basis.  If you’re a non-moving party and you don’t want the PI to remain in effect during your interlocutory appeal, you’ll have to post a bond or request a stay.

Thank you to Tony Paganelli for his Litigating Injunctions review.  The full checklist is a portion of the “Covenants Not To Compete” ICLEF seminar. To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of “Covenants Not To Compete”Click Here.


Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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