BarkingDogs.net

The material on this page was contributed by Geordie Duckler, LLC - Attorney at Law,
in an interview conducted by the Barking Dogs Webmaster in May of 2006

Go to the index for the Geordie Duckler interview

On the Difference Between Equity and Law, and the Distinction Between a Lawsuit, a Restraining Order, and an Injunction

Geordie Duckler:
A barking dog case is different from just about any other type of tort case, because in a barking dog suit, money is not the solution. The fact that the defendants may pay $50,000 to the plaintiffs doesn't change the fact that the dogs are barking and the poor guy next door, who filed the suit, can't go to sleep. So money doesn't solve the problem.

With a barking dog case, people want conduct to be restrained, and they want conduct to change. Either they want to change what somone is doing, or they want someone to be prevented from doing something, or they want someone to be forced to do something else.

Usually you sue in a court of law, you are suing for what is called compensation, which just means that you are looking for some amount of money. But when you sue in a barking case, what you are really looking for is something called equity. Therefore, you don't ask the court to sit as a court of law. Rather, you ask them to sit as a court of equity, where the focus is on changing people's conduct.

People often come to me and say, "The barking is driving us crazy and we want it to stop. What can we do?" But when I say, "You can sue them," they say, "no, no, no. We're not interested in a lawsuit to get money, we just want the noise to stop. What can we do about that?" I say, "Okay, what you really want then is a restraining order and an injunction. You want to restrain the defendants from doing something that you don't want them doing, and then you want to permanently stop them from doing it.

The something starts with them allowing their dogs to be outside, or allowing their dogs to be outside during times when you are trying to sleep. Or, it goes to not having dogs at all. Or, it goes to forcing the defendants to build a fence, or forcing the defendants to only have one dog, as opposed to having ten dogs.

What you are often doing in a court of equity is you are telling the judge, "Here's my proposal: They can only have two dogs and the dogs can only be outside at certain times. And, when they are outside, the dogs have to be a certain distance from the fence."

Now this sort of thing where you are attempting to restrain behavior does not go a jury. It goes to a judge, and when you have a hearing on a restraining order injunction, the judge says, "Well come on, everybody gets to have as many dogs as they want, so I'm not going to do that. They can have that many dogs. But yeah, I agree that they really shouldn't have dogs out barking at midnight. So I'll say that they have to have the dogs in between ten PM and eight AM. Also, I think they should have the dogs on a tether."

Usually, when you ask a court to sit as equity, in a sense you are doing what animal control should be doing - but they won't. Animal control should be coming over and telling your neighbor, "Your dog can't do this, or we'll fine you."

But if animal control won't help you, you can often act through the court, where you get a hearing from a judge, rather than a jury. It then falls to the judge to adopt a policy of fairness and force the dog owners to change their conduct.

Of course, no one would take that kind of a case on a contingency, because you don't get any money if you win, you just get people's behavior to change. That means that you have to pay your attorney on an hourly basis in order to get your restraining order or injunction. And they are two very different things.

Restraining orders are easy to get. Although, they are only temporary and they only last for ten or fifteen days before they expire. You can get them very quickly, you don't have to have much proof at all, because they are short and sweet and fast.

Injunctions, where you are permanently stopping someone from doing something for all time, are much different. They are expensive and they are hard to get. They require an entire evidentiary hearing, as though it were a trial. And the rules that mitigate against you getting one are very harsh. You have to meet something like an eight factor test that has all sorts of problems associated with it.

Therefore, unlike a restraining order, injunctions, when you are able to get them, do solve the problem. And that's what barking dog victims want, but they usually don't know that it's available to them, and they don't know that that's really what they should be asking for.

If you get a big sum of money when you sue, then, big whoopee. I guess you can use the money to move or to build a fence. But it could be that those options are not available to you, anyway. So it could be that money will not solve your barking problem. Therefore, money is not really the issue, so a lawsuit is not the way to go. Usually an injunction is what's called for. Therefore, as a rule, rather than focusing on preparing my clients for a trial before a jury, usually I'm preparing them for an injunction hearing before a judge. Then, if they lose that, they might as well forget the whole thing, because nothing else I can do will guarnatee that the noise is going to stop.

Barking Dogs Webmaster:
You used the term "court of equity." Now, that's not actually a separate court is it?

Geordie Duckler:
No. It's the same court. It's just that when you file your complaint, you're asking for a different thing. So, yes, it's always the same court and the same judge that hears the case, but you're asking him to preside in a capacity that's different from the manner in which a judge normally acts.

When you ask a judge to sit as a court of law in a case where you are seeking compensation, you can request that your fact finder be a jury or you can ask that your fact finder be a judge. So you can waive your right to a jury and just have a judge decide, if you prefer.

If you are trying to change people's behavior by asking the judge to sit as a court of equity - equity really just means fairness - then, you don't get the choice of having a jury. Rather, the judge decides, and the judge gets to consider things that he couldn't, otherwise, take into account. Also the evidence rules are a little different and the standards to acquire are different, and the hearing goes a little bit differently.

In a sense, it all comes down to what that judge thinks. It is very judge specific. And you don't really get any remedy or relief after that. If you sue someone for nuisance and you're just looking for money, and you go through the steps and the jury decides that you only get a little bit, you can usually appeal it if you really want to spend even more money. Then, you'll get a review in which the court will take a look at what happened in the previous proceeding.

But with a court of equity, in an injunction hearing, pretty much, if that judge thinks that barking dogs are annoying, horrible things that need to be dealt with harshly, you are going to do well. But if that judge thinks that all dogs should be allowed to bark as loud and as long as they want to, and everyone should just deal with it, then, you are going to do poorly.

And really, it all just falls down on who you get, so it's really very much a roll the dice kind of situation. And once that judge decides - that's it. You don't get to have some other judge or court of review decide that, in fact, you really should get that injunction. You're stuck with that decision.

So injunctions can be a bit dicier, but they are the solution to most barking problems.

Barking Dogs Webmaster:
So it sounds like, as a rule, you'd be best off if you first attempt to tackle your barking dog problem by trying to get an injunction through a court of equity.

Geordie Duckler:
Yeah, that's true. Usually, to get an injunction, you have to start with a temporary restraining order, also called a TRO. That's how you let the defendants know, this is the way we are heading, and right now, for the next fifteen days, you are restrained from letting your dogs bark at all. Please don't violate this court order, because then, you'll have a whole host of problems. And when that restraining order expires in fifteen days, believe me, we're going to go in and ask for an injunction.

An injunction requires (in order):
a) an initial motion for a temporary restraining order (also known as a TRO),
b) an ex parte appearance to obtain the TRO, (ex parte means that only one of the two sides appears in court)
c) a petition for the injunction you seek,
d) an affidavit supporting the petition,
e) a reply to any papers that your opponent files in opposition to your petition, and
f) a hearing on the petition.

So we're going to go in and ask for an injunction hearing where we will try to make that TRO permanent. At that point, the defendant sometimes gets the idea, and he thinks, Yeah,I won't have to pay any money because my dogs are barking, but it looks like, actually, I'm on the way to being told what I have to do. So maybe I want to, first, just change my behavior voluntarily, before I have to face a judge who tells me that I have to change.

So sometimes you can use the threat of an injunction as good leverage to help you get into some serious settlement negotiations.

Barking Dogs Webmaster:
As I'm understanding this, then, you can just ask for injunctive relief through a court of equity, if you prefer. Or, if you like, you can also sue for monetary compensation.

Geordie Duckler:
Yes, you can ask for either, or both. So when I file a lawsuit for a barking dog case, usually in my complaint, I ask for both money damages for the past barking, because no equity is going to change the fact that, in the past, the barking disrupted my client's life. And the only thing you can get for that is money.

But then, I also, at the same time, ask for a restraining order and an injunction for the future problem that I know is going to happen tomorrow, and next week, and a month from now, and all during the time that the lawsuit is proceeding.

So I ask for both, I want money for what happened in the past and I want an injunction for what's going to happen in the future, as well as for what's happening presently. Sometimes I get both, sometimes I get neither, and sometimes I only get one.

It depends on who the defendants are, what they're doing, whose moving on the property, and whether they've actually been cited by animal control. So often, after I've solved the barking problem, I just keep going in an attempt to at least try get my client's money back.

So they hire me hourly. There's no attorney fee statute here, so I tell them right up front that they are not getting their money back. Then, we sue both for law and inequity. Let's say that we win in the equity hearing and we get the injunction granted. Or, at least, we get the restraining order granted and my clients are now satisfied.

At that point I say, "You can stop and dismiss the lawsuit and everything's fine. But if you want to proceed with the case, you might be able to receive compensation for your past suffering. That way, you may be able recoup what you had to pay me to get here, which would be sort of like a de facto attorney's fee provision." And they are often fine with that, especially in light of the fact that they came out money ahead.

Go to the index for the Geordie Duckler interview

This page from the Duckler Interview is part of Section Three:
the Law section of barkingdogs.net