Legal Definitions - ex parte communication

An ex parte communication refers to a discussion or written message concerning a legal case or matter that takes place between a judge (or other decision-maker) and one party to the case, without the knowledge or presence of the other parties involved. Such communications are generally prohibited because they can create an unfair advantage, raise questions of bias, and undermine the principles of due process and transparency in the legal system.

The core issue with ex parte communications is that they deny all parties an equal opportunity to hear and respond to arguments or information presented to the decision-maker. This ensures that all proceedings are conducted fairly and openly.

Here are some examples illustrating ex parte communication:

• Example 1: Private Call to a Judge

  Imagine a lawyer representing a defendant in a civil lawsuit calls the judge's chambers to discuss a procedural issue, but during the conversation, the lawyer also begins to subtly argue the merits of their client's defense, without the opposing counsel being on the call or even aware that such a discussion is taking place. This would be an ex parte communication because one party's representative is presenting information or arguments to the judge outside the formal court proceedings and without the other side present. It creates an unfair opportunity for one side to influence the judge without the other party having a chance to hear or respond.

• Example 2: Email to a Regulatory Official

  Consider a situation where a state environmental agency is developing new regulations for industrial waste disposal. A representative from a manufacturing company that will be significantly impacted by these rules sends a detailed email directly to one of the agency's board members, outlining their company's specific objections and suggesting alternative language for the regulations, without copying other stakeholders (like environmental advocacy groups or other affected businesses) or making the communication public. This constitutes an ex parte communication because one interested party is attempting to influence a decision-maker privately, outside of the official public comment period or scheduled hearings, thereby bypassing the transparent process designed to gather input from all relevant parties.

• Example 3: Party Contacting a Mediator

  In a divorce case undergoing mediation, one spouse sends a text message directly to the mediator, sharing new, sensitive information about the other spouse's finances that they believe is crucial, and asking the mediator to consider it when proposing a settlement. The other spouse and their attorney are not aware of this message. This is an ex parte communication because one party is providing information to a neutral decision-maker (the mediator, who helps guide the settlement) without the other party's knowledge or presence. This could unfairly influence the mediator's perspective and compromise the impartiality of the mediation process.