When Common Knowledge is Wrong: Ex Parte Communications

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.


  1. Avatar Drew says:

    Eh. The judge wasn’t technically wrong based on a citation to caselaw from another state.

  2. Avatar Hunter says:

    Ex parte communication == ex parte proceeding.

    • Avatar Sam Glover says:

      Help me understand the point you are making.

      • Avatar Bob says:

        Hunter is correct. For some reason the anecdote in this post conflates an ex parte proceeding with an ex parte communication. Obviously there’s a difference. You can have a communication take place during a hearing in open court with all parties present, such as a text message, that is ex parte. The communication would be ex parte while the hearing would not be.

        How a communication actually made in open court when opposing counsel is present can still be ex parte is not explained by the story. We need more facts.

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