Ex parte communications are generally forbidden, as every lawyer ought to know. But what is an ex parte communication? When a judge told Mark Bennett that a communication in open court is not ex parte, he pulled up Westlaw. The judge was wrong:

“An ex parte pro­ceed­ing is a pro­ceed­ing that does not afford the oppos­ing party notice and an oppor­tu­nity to be heard on the requested relief.” K.G. v. Mered­ith, 138 Cal. Rptr. 3d 645, 661 n.15 (App. 1 Dist. 2012).

Whether the communication happens in open court is irrelevant. What matters is notice to the other party and an opportunity for that party to be heard.

Read “What We Know That Ain’t So” on Defending People.