Sometimes a lawyer calls me to discuss a motion they want to make for their client.
In a recent call like this, the lawyer (a long-time client of mine, for whom I have written numerous appeal and motion briefs) was wondering if she could ask the court to enjoin her client’s adversary from filing a petition for eviction against her client. Or maybe she could ask the court to stay the eviction action the adversary was probably going to file?
Over the course of our call, I realized there is a nuanced difference between an injunction and a stay that is underappreciated (and likely often misunderstood).
Both an injunction and a stay are judicial forms of relief that a lawyer can seek on behalf of their client to protect their interests vis-a-vis another party. But they are not the same, and a key difference between them is important if you (lawyers) are mulling which one to employ as you advocate for your client.
An injunction is a court order or judgment that prohibits (i.e., enjoins) a person or entity from doing something—for example, barring a contractor from building a garage in your neighbor’s backyard. You can also get an affirmative injunction, in which a court commands a person or entity to do something specific—for example, ordering a contractor to clean up the mess it made in your backyard. To get an injunction you have to request it in a petition or complaint (or a motion, if it is an emergency and you don’t have time to amend a petition or complaint that you already filed). One thing to remember about injunctions is that courts are reluctant to interfere with personal or entity conduct. So you have to show a really good reason why you need the injunction—for example, you are going to suffer irreparable bodily or inequitable financial harm.
A stay is a court order that pauses the process of an action that is already pending (which you started for your client by filing a petition or complaint). Stays are usually granted pursuant to a statute or rule—for example, when a client files a bankruptcy petition any other cases pending against him or her are automatically stayed. You can also ask the court to stay an action while an appeal is pending, or for some other reason that requires a pause in the action while your client and his or her adversary sort issues out. Courts are hesitant to stay an action unless they are required to by a statute or rule, but a good argument sometimes convinces a court to order a stay in other circumstances.
Back to my lawyer-client’s question: though I’ve never seen a case specifically addressing it, my attorney instinct is that a court would never enjoin a person from commencing an eviction action. Again, courts are reluctant to ever enjoin someone from doing something, and they are particularly reluctant when it comes to anything involving a person’s right to pursue a legal action. What her client could do, however, is wait for the adversary to file a petition for eviction and then ask for a stay to pause the action while her client sorts out other issues (in this case, another action was pending in a different court that would affect the adversary’s ability to evict the client).
The distinction between an injunction and a stay may be granular, but it is important not to confuse them. To get the relief your client needs, you need to seek the proper relief.
If you need help drafting an argument for your client’s request for an injunction or a stay, get in touch.
