LEGALESE — Ex Parte Communication

Credit: Morguefile
Credit: Morguefile

As a Judge, people often want to talk to me about cases I have.  Specifically, people want to talk to me about their cases, or their brother’s or co-worker’s case.  As a lawyer, I often hear people say, “I’m going to call the judge” when they believe an injustice has occurred.

But here’s the blanket rule: You can’t talk to the judge.  Ever.  About any case that is pending before the Court.  If a judge talks to one party about the case without the other party(ies) being present, it is called ex parte communication, and it is forbidden.

And for good cause.

In order for a Court hearing to be fair, a judge should go into the hearing with no independent knowledge of the case.  No one should be able to say something to the judge without the other side having a fair opportunity to give their version.  And, more to the point (since it is possible that the judge could first talk to one side, and then the other) no one should be able to say something to the judge without the other side hearing exactly what it was the other side said, including inflection, the equal ability to observe facial expressions (wink, wink), and therefore responding to something precise and exact rather than paraphrased.

Paraphrasing never quite gets it right.

There are a few very strict exceptions to this rule.  You can talk to a judge about scheduling.  “Can we set the Smith case for Tuesday?” does not violate the ex parte communications rule.  Likewise, if there is an emergency, such as the need for immediate protection in a Temporary Restraining order.  But even in those cases, the judge has to “reasonably believe[ ] that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and” also “makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.”  Judicial Canon of Ethics 2.9.

This also doesn’t mean that the judge can’t talk to anyone about the case.  Judges, as human beings, don’t always know everything or have experience with every situation.  There is nothing wrong with a judge calling another judge and saying, “This is the situation.  How do you think the law applies?”  The judge can also talk to her law clerk or secretary about a case.

Likewise, members of the judge’s staff also can’t talk to people about the substance of the case.  The judge’s law clerk works closely with the judge.  If one of the parties gets the law clerk’s ear, this has a good chance of tainting the process and making it unfair for the other side.  The refusal to communicate seems unfair but, I promise you, it is designed to make the system more fair.

So many times when people are disappointed with how something goes in Court they want to talk to the judge.  And so many times they take it personally, or as a sign that the judge doesn’t care about their case when the judge won’t talk to them.  This is a misinterpretation of the situation.  Many times the judge would like to speak to people – but can’t.  The rules won’t allow it.  In fact, if the judge will speak to you, you need to worry about whether he is following the rules of ethics.  Judges are kept isolated in order to maintain their neutrality.  And blind justice is exactly what we all want.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  

About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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