Due process is fundamental to the the American legal system – both civil and criminal. Due process means all parties to a legal matter are entitled to notice and a right to be heard in any legal proceeding. Notice is the means by which both parties to any legal matter are kept informed. This is an issue of due process – both sides have a right to know what is going on in their matter and also an opportunity to be heard. Sometimes, however, a court may hear one party on an emergent basis; such a hearing is called "ex parte."
What Is an Ex Parte Hearing?
Ex parte is a Latin term that means "for one party." In a legal context, it refers to hearings, motions and orders granted for the benefit of one party without notice to the other party. The idea of an ex parte motion flies in the face of court rules that insist both parties to a lawsuit or other legal proceeding be present for any hearings or proceedings. Due process is the legal principle that all parties to a legal matter have the right to notice and an opportunity to be heard. This is fundamental to the success of our democracy and legal system.
Since due process is contravened when one party seeks an ex parte hearing, the underlying reason for the hearing must be an emergency. Typical situations in which one party may seek an ex parte hearing to obtain an emergency restraining order are when there is a threat to someone's life or where issues of child custody are involved.
How to Apply for an Ex Parte Hearing
Before you can have an ex parte hearing, you must first obtain the court's permission. This requires you to petition the court without notifying any of the other parties to the underlying matter. Depending on your jurisdiction and the judge's requirements, you first have to submit a petition for an ex parte hearing. In your petition, you will have to convince the judge that you need an immediate order due to an urgent underlying situation. You should be prepared to also submit supporting documentation to demonstrate the urgency of your petition. Keep in mind that these types of petitions are granted only in cases of emergency.
Once your petition is approved, the court may schedule a hearing. Some judges may issue a temporary order based on your petition, then schedule a full hearing once all parties have been served to determine if a permanent order should be issued or if the temporary order should be rescinded.
What Happens at the Hearing
Some judges automatically grant the temporary order requested in the ex parte application, whereas other judges may call you in for a hearing. At this hearing, the judge will question you in an effort to determine whether or not your situation constitutes a real emergency. The judge may immediately rule from the bench or retire to her chambers to make a determination on your petition.
If the judge decides in your favor, it is important to note that any order issued on the basis of an ex parte hearing is temporary. The court must allow the other side to present its opposition, with both sides present, within a reasonable amount of time. If the judge denies your order, you may still be entitled to a full hearing, after giving notice to all parties in the case.
An ex parte hearing is typically only available in an emergency.
Melissa McCall is an accomplished lawyer, science journalist and legal analyst. She graduated cum laude from Syracuse University in 2003 and spent two years as a Judicial Law Clerk, followed by 2 years at a general litigation firm and a brief stint as the Director of Environmental Protection for the Virgin Islands. Since leaving the US Virgin Islands, she has worked as a legal recruiter, legal writer and legal analyst.