How to successfully oppose an ex parte application.

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How to Oppose an Ex Parte Application

I hate opposing ex parte applications.

I'm fine with the process if opposing counsel gives the required 24 hours notice, and I can file my opposition before the hearing and have it considered with the ex parte application. Far more often, however, even if opposing counsel provides the required notice, the basis for the request is so vague that I have no ability to prepare an opposition.

“Dear Judge:

Opposing counsel says he is seeking some unspecified relief regarding some unspecified discovery, and I really don't think you grant him whatever it is he wants.”

Depending on the schedule of the court and its filing requirements, it is often the case that I don't receive the application until late in the day the day before the hearing, with no opportunity to file an opposition until the morning of the hearing. Even if the court accepts electronic filings, affording me the opportunity to file my opposition the night before, it is usually the case that the papers will not work their way through the system prior to the hearing. In those cases, the courtesy copy I provide to the court the morning of the hearing is the only copy the judge will receive in advance of the hearing. By that time, the judge has already read the moving papers and has no time to read the opposition. A good judge will take the time to review the opposition before taking the bench, but if he or she happens to be in trial, with jurors waiting in the hall, the opposition will never be read.

My latest ex parte application opposition involved a request for a TRO, seeking to restrain my client from all sorts of things. The case is a standard attempt to keep my client from competing with his former employer, by filing an action and then trying to poison my client as to future employers, while at the same time trying to intimidate him with discovery and ex parte applications.

The ex parte application for a TRO was a sight to behold, running 20 pages and supported by five declarations. I prepared an equally impressive opposition, refuting all the false claims made in the declarations, but I knew there was little or no chance of the court having the time to read my opposition in detail.

You have no doubt learned the wisdom of lots of headings to make your papers easy for the court to scan. I take this to the next level, and in cases such as this create a list with bullet points on the first page of the opposition, explaining why the application should be denied. I sometimes wonder if that is overkill, but this instance showed how effective that technique can be. The hearing was set for 8:30 a.m., and the doors did not open until that time. I checked in and filed my opposition with the court clerk. She turned to take the motion to the judge, and I saw that she met him in the corridor, preparing to enter the courtroom. As I watched, he flipped to the first page of my points and authorities where I had my list, took about 30 seconds to scan it, and then entered the courtroom and took the bench. He used my list as a checklist, asking opposing counsel to respond to each point.

Ex parte application denied.

Be creative. Make life as easy as possible for the judge when you draft your papers, and you will have a far better shot at getting your argument in front of the court.

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