Also known as: ex-parte information · ex parte
Written by attorneys · grounded in primary & secondary sources — see below
A communication or submission of information to a judge or tribunal made by one party without notice to or in the absence of the opposing party or counsel. Such contacts are generally prohibited when they concern the merits of a pending or impending matter. Limited exceptions exist for purely administrative or scheduling matters that create no tactical advantage and are promptly disclosed to all sides.
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Emma Erickson, counsel for the plaintiff in a contract dispute, calls the judge's chambers to discuss the strength of her client's evidence. The judge listens briefly before ending the call and later discloses the contact on the record. The communication is treated as improper because it addressed substantive issues outside the presence of opposing counsel.
Enzo Eastwood files an ex parte application for a temporary restraining order on behalf of Evergreen Bank. Eastwood includes in the papers several facts that weaken the bank's position on irreparable harm. The disclosure satisfies the duty to present all material facts so the court can decide the application fairly.
Elijah Edwards, a state environmental regulator, is sued in federal court by Equinox Energy for an injunction. Counsel for Equinox submits an ex parte letter to the judge detailing enforcement facts without notice to Edwards. The submission is treated as improper ex parte information because it addressed merits outside the presence of opposing counsel.
Esme Ellington, counsel for Eastern Electric, telephones the judge to request a new hearing date because of a family emergency. The judge confirms the change after determining the call concerns only logistics and creates no advantage. The judge immediately notifies opposing counsel of the conversation and offers them a chance to respond.
Ethan Evans, counsel in a criminal trial, approaches a seated juror in the courthouse hallway to ask about the juror's reaction to a witness. Evans later discloses the contact to the judge in chambers without notice to opposing counsel. The communication is treated as improper ex parte information because it addressed substantive issues outside the presence of all parties.
Erika Echevarria emails the judge to confirm receipt of a routine status report. The judge responds with a minor clarification about the report's format. Because the exchange addresses only administrative details and the judge believes neither side gains an advantage, the contact falls within the permitted exception.
A judge may engage in ex parte communication for scheduling, administrative, or emergency purposes that do not address substantive matters. The judge must reasonably believe no party gains a procedural, substantive, or tactical advantage and must promptly notify all other parties of the substance of the communication while giving them an opportunity to respond.
Supporting sources
…common-law tradition is one of live testimony in court subject to adversarial testing, while the civil-law tradition relies on ex parte examinations. Pp. 3–8. (b) The historical evidence leaves little doubt that the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure,…
…Virginia , 129 U. S. 114. Cf. Slochower v. Board of Education , 350 U. S. 551; Wieman v. Updegraff , 344 U. S. 183. And see Ex parte Secombe , 19 How. 9, 13. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any…
…Court said only that in a replevin suit between two private parties the initial determination required something more than an ex parte proceeding before a court clerk. Similarly, Bell v. Burson, supra , at 540, held, in the context of the revocation of a state-granted driver's license, that due process required only that…
…that § 5 is "a positive grant of legislative power" to Congress, Katzenbach v. Morgan , 384 U. S. 641, 651 (1966). In Ex parte Virginia , 100 U. S. 339, 345-346 (1880), we explained the scope of Congress' § 5 power in the following broad terms: "Whatever legislation is appropriate, that is, adapted to carry out…
…principle has grown hoary under the reverend respect of centuries; (19, Edw. 4, 6, cited Theol. Dig. lib. 1, ch. 6, sec. 21. Ex parte Bonsmaker, 13, Ves. jun. 71 — Briston v. Towers, 6, T.R. 45, ) and cannot now be shaken without uprooting the very foundations of national law. Bynk. Quæst. Pub. Juris, ch. 3. I,…
A lawyer appearing in an ex parte proceeding must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not those facts are adverse to the lawyer's client.
Supporting sources
An inadvertent ex parte communication does not automatically require reversal. When the error is unpreserved, appellate courts review for plain error and reverse only if the communication affected the defendant's substantial rights and seriously undermined the fairness or integrity of the proceedings.
Supporting sources
A preliminary injunction is a more enduring form of interim relief that remains in place until final judgment. Because of its weight, the rules require notice to the adverse party and an opportunity to be heard before entry. A court may not issue a preliminary injunction ex parte. The proper device for truly exigent relief without notice is a temporary restraining order.
Supporting sources