The Two Meanings of Ex Parte

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

A Latin phrase meaning "from one party," ex parte is a legal term that most often refers to instances where a judge makes a legal decision without all parties to the case being present. Ex parte is a unique and somewhat controversial area of the law, especially since it allows action to be taken against an individual without that individual being able to initially defend him or herself. Additionally, ex parte is used in legal ethics to describe potential ethical violations where one lawyer in a case attempts to communicate directly either with the judge or with the opposing party. Both forms of ex parte bring up important questions, especially around the ethical conduct of lawyers and protections of due process rights.

Ex parte motions

Ex parte motions for orders involve motions where one party is not present. Ex parte motions do not require that an interested party in the case be present or make a response to the motion. A temporary restraining order is one example of an ex parte motion. A person in an abusive relationship can apply to the court to get a temporary restraining order applied to the abuser. Although such an order clearly has an adverse impact on the alleged abuser's liberty, as an ex parte motion it can be granted without waiting for a response from that alleged abuser. Obviously, the importance of an ex parte motion in such a case is to protect the safety and well-being of the person applying for the restraining order.

 While ex parte orders are important in some cases, such as protecting domestic violence victims, they due bring up important questions concerning due process. The Fifth and Fourteenth Amendments of the U.S. Constitution, for example, protect citizens from being deprived of their liberty or property without due process of the law. Usually, this would mean that a party that may be adversely affected by an order or decree would first have the right to respond to the motion for such an order. As a result, ex parte orders are severely limited by U.S. courts and are typically only temporary in nature.

 Legal ethics

  Ex parte also has another meaning when it comes to the realm of legal ethics. Lawyers for one party are usually not allowed to contact the judge presiding over the case or the other represented party without first notifying the other party's lawyer. In most cases, a lawyer can only contact the judge or the other party so long as the other party's lawyer is also present. Improper ex parte contact is considered an ethical violation in the legal profession since it puts the other party's lawyer at a potential disadvantage in advocating for his or her client.

 Ex parte, whether used in the context of legal ethics or civil procedures, brings up fascinating questions about how lawyers should conduct themselves and when a court could potentially deny (at least temporarily) a person's right to due process. Ex parte is just one example of how the law often must balance protecting constitutional rights while also protecting victims of violence and abuse.

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