Daily Archives: April 16, 2009

Previously I wrote about “without notice” motions, or “ex parte” motions, where only one party attends before the court and obtains relief without the other party’s participation.

As I indicated then, ex parte motions are procedurally unjust because the doctrine of procedural fairness requires that parties participate meaningfully before an impartial third party. As such, remedies are provided for orders obtained without the other party’s (or parties’) attendance.

Under the Rules of Civil Procedure, if an order is obtained without notice to the parties, the parties affected may bring a motion to set aside the order granted under the without notice motion.

However, there’s a catch to this. Once the persons affected become aware of the order in question, must act fast, meaning that the party must bring the motion on the next available hearing date. Any unreasonable delay in bringing the motion may result in its being dismissed.

Understandably, the rush can significantly stress both the party and the party’s lawyer. Because of the short time period allowed under the rules, the lawyer will likely have to pause whatever he or she is doing and attend to the motion urgently. Consequently, lawyers not specializing in civil litigation may be reluctant to take on this kind of motion. On the other hand, seasoned litigators may be used to the urgency of motions of this kind and actually welcome them.