Difference Between Temporary Restraining Order & Preliminary Injunction

Preliminary injunctions and temporary restraining orders are two types of injunction, but they have different requirements and durations. An injunctions is a court order, usually based on a request by a plaintiff, which governs a defendant's behavior. It is classified as an equitable remedy; that is, a remedy other than monetary compensation for a situation in which monetary relief is inapplicable or inadequate.

If a party has not yet suffered harm but will in the future, that party cannot sue for compensation before the harm has occurred. To deal with such predicaments, the law provides the option of seeking protection from imminent harm by asking a court for an injunction. Courts of equity use injunctions to help parties who will almost certainly suffer harm if the injunction is not granted. Courts may issue affirmative injunctions, which compel a defendant to act, or prohibitory injunctions, which prohibit the defendant from acting. Either way, an injunction is recognizable because it governs a party's behavior.

The intention of a preliminary injunction is to keep things exactly as they are for long enough to allow the court to make a decision on the underlying issue. For instance, if John and Mary are fighting over the ownership of a house in which John lives, Mary might apply for a preliminary injunction to keep John from selling the house until the court decides who owns it. Preliminary injunctions are not intended, in themselves, to be permanent; however, once the court decides the underlying issue, it may decide to make the injunction permanent. The preliminary injunction is intended to act as a stopgap before and during the full judicial proceeding.

Because preliminary injunctions may bind a defendant's behavior for quite some time, the law requires a certain level of process in order to obtain a preliminary injunction. The plaintiff may apply to the court for the injunction, but the court may not grant it without holding a hearing. The defendant must receive notice of this hearing, so that he has the opportunity to appear and contest the injunction request.

A temporary restraining order (TRO) is also an injunction, but it is used in situations in which the plaintiff needs immediate protection and theoretically cannot afford even the delay required to hold a hearing on the matter. There is no hearing or process required to obtain a TRO; upon the plaintiff's application, the judge can simply issue the TRO. Because the TRO procedure does not give the defendant much room to contest it, TROs must be of limited duration, generally no more than 10 days. Some courts may extend the TRO to 20 days upon a showing of good cause, but after 20 days, the preliminary injunction process must take over. TROs are very difficult to appeal.

Because the TRO does significantly (though not illegally) deprive the defendant of freedom, the TRO is reserved only for situations in which the plaintiff is facing irreparable harm, meaning a potential harm that could not be repaired later by the law if it occurs. Issuance of a TRO also requires that the judge have no other means to prevent the oncoming injury. In deciding whether to grant a TRO, courts must also balance the potential hardship to the plaintiff without a TRO against the potential hardship to the defendant if the TRO is granted. Should the potential TRO impact the public interest, courts must take that possible impact into account as well.