What does ‘Ex Parte’ Mean and How is it Applied in a Legal Context?
Ex parte is one of those annoying Latin phrases lawyers still use, but the common translation is basically ‘one sided’, or ‘for one side’. Ex parte communication is when one party to a case communicates to the court without informing the other party, depriving them of their chance to respond. There are times when this is considered acceptable, but the majority of the time ex parte communication should be treated with caution, especially by non-lawyers.
When filing a case, the Plaintiff is required to serve notice of that case on all named parties. If that named party files a response, then Plaintiff must send them notice of all its filed motions and requests for hearing, and vice versa. The law allows for both sides to file responses and show up to hearings, should they choose to do so. If Plaintiff or Defendant files a motion and fails to give notice to the opposing party, then it would be considered ex parte. Ex parte communication could also be contacting a judge about a case directly without including all parties on the correspondence. Improper ex parte communication is usually prohibited and considered a major faux pas that could result in sanctions. However, there are some limited circumstances where ex parte motions or hearings are allowed.
Although attorneys may not be specifically prohibited from ex parte communication, judges are not generally allowed to initiate or permit ex parte communications in New Mexico except in certain circumstances, nor are their staff. Where prohibited ex parte communication occurs, the judge is supposed to promptly notify all parties and give them the chance to respond. Judges can, with the permission of the parties, consult with each party separately about the matter at hand. The reason is that judges are expected to be impartial, and allowing either side to discuss the case without the other present potentially gives one side a tactical advantage. Judges go to great lengths to be as fair as possible, and they don’t look kindly on parties who attempt to undermine their impartiality by trying to contact them directly. However, there are some specific instance listed below where ex parte communication is both allowed and relatively common:
- Family Court: The most common place to see ex parte communication is in family court. These motions are usually heard on an emergency basis and examples include child welfare, domestic violence, or personal financial harm issues. Although courts will hear and enter orders ex parte, these orders will often be temporary and for the specific issue at hand. The court will then attempt to set a hearing for both parties to attend before issuing a more permanent order.
- Service: Another common place for ex parte communication is where not all parties have been served. For example, if Plaintiff is unable to locate a defendant and has to file a motion for publication in a local newspaper or a motion to post the summons on the defendant’s property. Ex parte motions and hearings are acceptable where Plaintiff is attempting to complete service.
- Scheduling: Ex parte communication is allowed for scheduling matters. A routine type of communication is when attorneys and judges or their staff are in contact for clarification of scheduling matters. This is usually to confirm whether a scheduled hearing is going ahead, or to let the attorneys know that a hearing has been rescheduled or that telephonic approval has been granted. NMRA 21-209 allows for scheduling and other minor ex parte communication as long as the other parties are notified of the subject matter and no advantage is conferred to the party who had the ex parte conversation.
Violations
Something that happens on occasion is unintentionally leaving off the opposing party when e-mailing a proposed order to the court. This can be especially common when there are multiple parties or when the case is particularly complex. If something like this happens, the best solution is to fix it as soon as you notice it and own up to your mistake.
Repeated calls, letters, or e-mails directly to the judge, even after being notified that it is improper, are likely to be treated severely. If the judge believes the ex parte communication was particularly egregious, the judge may decide to enter an order to show cause. This order usually comes with a notice of hearing summoning the parties to court and asking the party in question why they should not be sanctioned for their conduct. If their answers don’t satisfy the judge, the judge could award sanctions that the violating party will have to pay, even if they win their case.
How to Avoid Ex Parte Communication
Never communicate to a judge or their staff directly. There is a formal system for filing pleadings, and everyone is expected to follow it, even parties who are pro se. If you are represented, you should follow the advice of your attorney and let them handle your case for you. If you aren’t happy with your representation, you can seek out another attorney, but you shouldn’t send letters to the judge or the judge’s staff or reach out to them directly.
The easiest way to avoid ex parte communication altogether is to hire a lawyer and have all pleadings and communication go through them. Keep in mind that should you reach out to a judge or their staff directly, the result may prove costly.
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