Don't Cry over Your Ex Parte

It’s my ex parte (pronounced party) and I’ll cry if I want to.

OK, I am probably not the first one who took the legal term and matched it with the words from Leslie Gore’s famous 1963 song.  But family law lawyers –and many people who have gone through the divorce process, especially if their cases involved child custody or domestic violence– are familiar with the term.  

Recently, California changed the term from ex parte to an application for an emergency order, which is really how the old phrase, ex parte, got its name.  Ex parte basically means an authorized process to speak to the judge handling your case with very little notice (or perhaps no notice) to the other side.  It means you get to immediately talk to the judge about your case before other people who have been waiting weeks or months get to talk about their case. 

A little bit of background.  In California, as in most American states, ex parte appearances are usually not allowed.  Specifically, the Rules of Professional Conduct in California prohibit speaking with a judge about a contested matter pending before the judge except in open court; with the consent of all other attorneys in the matter; in the presence of all other attorneys in the matter; in writing with a copy furnished to all other lawyers; or in ex parte matters that the law specifically allows. 

After all, before one side gets to see the judge, the other side should receive notice and have enough time to write a response.  It’s only fair.  Otherwise, nothing would prevent any of us from finding the judge at the grocery store or the gas station or wherever and putting in a good word about ourselves or our client. 

But in California, if it is an emergency, you can see the judge, with as little as one day’s notice to the other side about your planned visit to the courthouse.  And if the case involves domestic violence, you might not have to give any notice.  Specifically, California’s Rules of Court allow ex parte or emergency application for orders to prevent domestic violence; for orders to prevent immediate loss or damage to property subject to disposition in the case; or to make orders about procedural matters such as the hearing date.  The law also allows ex parte orders if there has been a showing of immediate harm to the child or immediate risk that the child will be removed from California.   

The key for both lawyers and parties is to figure out what is an emergency and what is not.  If the case truly involves an emergency, go for it; with reductions in court funding and the resultant layoff in staff, if you simply file papers and wait your turn in line, you may be talking about three months or more before you get to court, especially if the case involves child custody.  On the other hand, if your case is not an emergency, you risk the loss of time and money for a trip to the courthouse only to have the judge tell you that what you thought was an emergency really is not an emergency.

So, here are a few clues on going ex parte and winning.  First, except where there is a severe risk of violence, let the other side know about your ex parte appearance.  If there is no evidence that the other side had notice and if he or she is not present at the hearing, then, all things being equal, there is a greater chance that the ex parte application will be denied.

Second, make it simple.  With all those “regular” cases waiting to be heard, the judge is not going to have much time to hear an ex parte matter, especially if there are other people who have ex parte applications as well.  Also, the judge does not get much time, if any, to review your file and to read anything you have written in connection with the ex parte application.  So the facts of your matter and the request that you are asking for, have to be easy for the judge to understand.  Otherwise, the judge runs the risk of making the wrong decision and judges do not like to be wrong.  And if the matter is complicated, the judge can simply decide that the matter is not appropriate for an ex parte application.  End of story.

Third, see if you can reach an agreement with the other side.  Maybe there is no agreement on the long term solution but both sides agree on what should happen until there is time for a regular hearing.  A compromise order, involving a situation where everyone knows what the rules are, may be better than no order.  If you both agree on the same thing, and everybody has signed the papers in advance, the judge could still refuse to stop the presses and sign your paperwork, but you sure have a greater chance of getting what you want than if there is no agreement.

 Of course, as stated above there are some cases where an ex parte application is not going to be granted, period.  In these cases, no amount of begging or pleading is going to convince the judge.  The worst is having the judge put your matter at the end of the calendar and then having it denied, maybe because the court file could not be found.  Then, you have the disappointment of losing and also the additional time spent pursuing the matter as a factor.  I guess when that happens, not only can you cry if you want to, but perhaps you should.  Or as Leslie Gore would say, “You would cry too if it happened to you”.