A provisional remedy occurs when it is necessary to preserve the status quo or enact swift protection for a victim until a final legal solution can occur for both parties. Many times, court cases can take months. When there is a matter that needs an instant decision that is not final, a provisional remedy is an ideal solution to provide clarity to the parties and in many cases, protect victims from further harm.
The constitutionality of a provisional remedy is something important to prove before a provisional remedy can be issued. Courts have to balance the weight of the private interest of the party against the individual seeking the remedy. There is a substantial risk of depriving an individual of property falsely if the proper constitutional analysis does not take place.
Courts usually apply a three-part test to determine whether a pre-judgment remedy meets the constitutional requirements of denying an individual’s rights by the government. The three-part test is as follows:
In addition to the three-part test, courts have to take into account whether there are any external circumstances that impact whether a provisional remedy is necessary and if one is issued, whether it denies constitutional protections to the defendant.
FRCP 64 governs several types of seizures that can happen from provisional remedies. Some examples of these seizures are garnishment, attachment or replevin. Garnishment occurs when a court determines that an individual’s salary from an employer or other source must be given to satisfy a debt. Attachment is a legal process where a court of law grants a creditor’s request to designate a specific property owned by the debtor to be transferred to the creditor or sold to benefit the creditor. Replevin is a procedure where goods have the ability to be provisionally restored to their rightful owner while waiting for the outcome of an action to determine the rights of the parties involved in the dispute.
In addition to FRCP 64, there is also FRCP 65 that is directly related to temporary restraining orders that can be made ex parte. Temporary restraining orders are mainly used in cases involving domestic violence or stalking charges to place immediate protection on the victim. An interlocutory decree is another device used by judges to make a non-final decision that is not binding until the interim decision is complete. A temporary injunction is used to make a quick decision that can be overturned later when more of the case has been decided upon.
Provisional remedies are absolutely complex. The rule of thumb is that if you are facing a lawsuit where there is a potential for your property to be seized or there are other constitutional issues at play, then it is best to work with an attorney to represent your case. Having a lawyer will help you to understand the legal options available to you along with recommendations for the best course of action.
Provisional remedies are essentially designed to protect victims of serious crimes that take a longer time to decide in the courts. They serve as a legal mechanism that judges can enact quickly to protect as many parties as possible while the legal matter is going through the various phases of litigation.
Provisional remedies are legal tools used to make a faster court decision that protects the interests of all parties while a larger lawsuit or decision is pending. Provisional remedies are not meant to be a final decision. However, they are a recommended course of action when there are constitutional rights being disputed in a case and more time is required to make the best legal decision for all parties involved. There are many types of provisional remedies available that can include temporary restraining orders, interlocutory decrees, and temporary injunctions.