EX PARTE
[Latin, On one side only.] Done by, for, or on the
application of one party alone.
An ex parte judicial proceeding is conducted
for the benefit of only one party. Ex parte may
also describe contact with a person represented
by an attorney, outside the presence of the attor-
ney. The term ex parte is used in a case name to
signify that the suit was brought by the person
whose name follows the term.
Under the FIFTH AMENDMENT to the U.S.
Constitution, “No person shall . . . be deprived of
life, liberty, or property, without DUE PROCESS of
law.” A bedrock feature of due process is fair
notice to parties who may be affected by legal
proceedings. An ex parte judicial proceeding,
conducted without notice to, and outside the
presence of, affected parties, would appear to
violate the Constitution. However, adequate
notice of judicial proceedings to concerned par-
ties may at times work irreparable harm to one
or more of those parties. In such a case, the
threatened party or parties may receive an ex
parte court hearing to request temporary judicial
relief without notice to, and outside the presence
of, other persons affected by the hearing.
Ex parte judicial proceedings are usually
reserved for urgent matters where requiring
notice would subject one party to irreparable
harm. For example, a person suffering abuse at
the hands of a spouse or significant other may
seek ex parte a TEMPORARY RESTRAINING
ORDER from a court, directing the alleged abuser
to stay away from him or her. Ex parte judicial
proceedings are also used to stop irreparable
injury to property. For example, if two neigh-
bors, Reggie and Veronica, disagree over whose
property a tree stands on, and Reggie wants to
cut down the tree whereas Veronica wants to
save it, Veronica can seek an ex parte hearing
before a judge. At the hearing, she will ask the
judge for a temporary RESTRAINING ORDER pre-
venting Reggie from felling the tree. She will
have to show the judge that she had no reason-
able opportunity to provide Reggie with formal
notice of the hearing, and that she might win the
case. The court will then balance the potential
hardships to Reggie and Veronica, in considering
whether to grant Veronica’s request.
A court order from an ex parte hearing is
swiftly followed by a full hearing between the
interested parties to the dispute. State and fed-
eral legislatures maintain laws allowing ex parte
proceedings because such hearings balance the
right to notice against the right to use the legal
system to avert imminent and irreparable harm.
Far from violating the Constitution, the ex parte
proceeding is a lasting illustration of the elastic-
ity of due process.
Ex parte contact occurs when an attorney
communicates with another party outside the
presence of that party’s attorney. Ex parte contact
also describes a judge who communicates with
one party to a lawsuit to the exclusion of the
other party or parties, or a judge who initiates
discussions about a case with disinterested third
parties. Canon 3(A)(4) of the AMERICAN BAR
ASSOCIATION (ABA) Model CODE OF JUDICIAL
CONDUCT discourages judges from such ex parte
communications. Under rule 4.2 of the ABA
Model Rules of PROFESSIONAL RESPONSIBILITY,
a lawyer should refrain from contacting a party
who the lawyer knows is represented by another
attorney, unless the lawyer has the consent of the
other attorney or is authorized by law to do so.
In a case name, ex parte signifies that the suit
was initiated by the person whose name follows
the term. For example, Ex parte Williams means
that the case was brought on Williams’s request
alone. Many jurisdictions have abandoned ex
parte in case names, preferring English over
Latin terms (e.g., Application ofWilliams or Peti-
tion of Williams). In some jurisdictions, ex parte
has been replaced by in re, which means “in the
matter of ” (e.g., In re Williams). However, most
jurisdictions reserve the term in re for proceed-
