Malcolm Rivera
In law, the term 'ex parte' is used in several contexts, including legal ethics and civil procedure. It is a Latin term that means from/out of the party/faction of, and it is used to describe a situation where a judge communicates with only one party or that party's lawyer. Ex parte hearings are typically reserved for emergency situations, as they contradict the fundamental right to due process guaranteed by the Constitution. In civil procedure, ex parte refers to motions for orders that can be granted without waiting for a response from the other side. These orders are usually temporary and put in place until further hearings can take place. In legal ethics, ex parte refers to improper contact with a party or a judge, which occurs when a lawyer contacts the judge or opposing party without the other party's lawyer being present.
| Characteristics | Values |
|---|---|
| Legal Definition | A proceeding in the absence of one or more parties |
| Origin | Latin, meaning "from one party" |
| Legal Ethics | Refers to improper contact with a party or a judge |
| Civil Procedure | Used to refer to motions for orders that can be granted without waiting for a response from the other side |
| Hearing Requirements | Extreme cases only, as they contradict the fundamental right to due process guaranteed by the Constitution |
| Hearing Examples | Domestic violence cases, child custody matters, emergency asset freezes |
| Application Process | Submit an ex parte application or motion to the judge, including an affidavit and any exhibits |
| Application Purpose | To convince the judge of the need for an immediate order due to an urgent situation |
| Order Type | Temporary and interim in nature, requiring further hearings to be made permanent |
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What You'll Learn
Ex parte hearings
The term "ex parte" comes from Latin and means “from one party” or “from/out of the party/faction of”. In law, it refers to a situation where a judge communicates with only one side (or one party's lawyer) in a legal matter. In other words, it is a legal proceeding brought by one party without the other party being present, represented, or notified.
In some states, an ex parte application or motion is submitted to the judge, along with an affidavit and any relevant exhibits. This is to convince the judge that an immediate order is necessary due to an urgent situation. However, it is important to note that ex parte orders are temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest it before it can become permanent.
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Improper contact
Ex parte communications are generally prohibited. The rules of judicial conduct prohibit judges from engaging in ex parte communications. Lawyers are also prohibited by the rules of legal ethics from communicating with a judge or juror outside of the presence of opposing counsel. Judges and lawyers may be disciplined for engaging in improper ex parte communications.
The easiest way to avoid ex parte communication altogether is to hire a lawyer and have all pleadings and communication go through them. If you reach out to a judge or their staff directly, the result may be costly. If you want to tell the judge about your case or ask the judge to take a specific action, you should file a written motion with the clerk of the court.
There are some limited circumstances in which a judge can communicate with a legal expert who has no interest in the case concerning a legal issue. However, parties in a case before the judge should be given an opportunity to learn about and respond to the communication. A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before them, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited.
Ex parte communications are improper if they give one party a procedural, substantive, or tactical advantage. For example, it is improper for a judge to meet with a hesitant witness outside the presence of counsel for all parties to persuade the witness to testify. It is also improper for a judge to visit socially in chambers with an attorney unless attorneys for all parties in a matter are present.
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Temporary restraining orders
A Temporary Restraining Order (TRO) is a court order that prevents someone from taking particular actions for a specified period. TROs are often associated with domestic violence, but they can also address other dangerous situations, such as stalking or sexual violence.
A TRO is a temporary order issued by the court to provide immediate protection. It is often requested as part of a larger legal process, such as a civil lawsuit or family law case, to maintain the status quo and prevent further harm or damage until a full hearing can be held.
In the context of ex parte, a TRO is a type of protective order that can be obtained without the other party being present or notified. This means that the restrained person will not have the opportunity to respond or contest the order until a hearing is held, usually within two weeks of the TRO being granted. To obtain an ex parte TRO, the petitioner must provide sufficient evidence of immediate danger or harm.
The specific requirements and procedures for obtaining a TRO may vary depending on the jurisdiction. For example, in California, an emergency ex parte protective order issued by a judge at the scene of domestic violence will last for five court business days or seven calendar days. On the other hand, in Texas, a temporary ex parte protective order can be valid for up to 20 days and may be extended for additional 20-day periods if necessary.
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Emergency situations
In emergency situations, an ex parte motion provides an exception to the rules of due process, allowing a party to petition the court without notifying or serving the other parties involved. Ex parte hearings are generally reserved for extreme cases as they contradict the fundamental right to due process.
To obtain an emergency ex parte order, the petitioner must satisfy specific legal criteria. The court will look for evidence of immediate and irreparable harm, loss, or damage that could occur as a result of the delay required to notify the other party. The petitioner must also demonstrate that they have made reasonable, good-faith efforts to notify the opposing party about the order, unless such notification would itself cause the harm intended to be avoided.
In California, for example, emergency ex parte orders are typically used in situations where there is an immediate threat of harm to a minor child, domestic violence, or a threat of harm to property. The petitioner is required to submit a detailed affidavit or sworn statement outlining the specific facts that constitute the emergency, including relevant dates, times, and the nature of the alleged harm.
In some states, the judge will review the application and supporting documents and either grant or deny the ex parte order without meeting the petitioner. In other states, the judge will require the petitioner to appear and will ask questions to determine whether the situation is a true emergency.
It is important to note that ex-parte emergency motions are not granted lightly, and many are denied due to the moving party not following the proper legal and procedural rules. The party filing the motion must notify the other side of their intent to file and state what efforts were made to notify the other party.
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Due process
The term 'ex parte' is a legal term that arises in emergency family law issues. It refers to a Latin term, 'from one party', and is used to describe legal proceedings that take place without all parties present. In other words, it is a legal proceeding brought by one party without the other party being present or notified.
In the US, ex parte orders or decrees are limited by the Fifth and Fourteenth Amendments, which state that a person cannot be deprived of liberty or property without due process. Due process, in this context, refers to the requirement that all parties are entitled to notice and a fair hearing. This is a fundamental element of fairness, ensuring that all parties in interest are notified of a hearing and are aware of its scope and requested outcome.
However, in emergency situations, an 'ex parte application' can be made, providing an exception to the rules of due process. This allows a party to petition the court without the other party's involvement, and a judge may issue a temporary order on the same day. This is typically granted in extreme cases, as they contradict the right to due process. For example, in domestic violence cases, a victim may seek immediate protection through a temporary restraining order.
After an ex parte order is granted, a follow-up hearing is typically scheduled to allow the other party to present their case and contest the order. This hearing ensures that both parties have the opportunity to be heard and that the legal process is fair and just. The specific procedures and rules may vary depending on the court and state, but the overall process is generally similar.
In summary, while ex parte hearings and orders can provide immediate relief in urgent situations, they are carefully balanced with the requirements of due process. The right to due process, as guaranteed by the Constitution, ensures that all parties are afforded fair notice and the opportunity to present their case.
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