When may you communicate with the court in the absence of the opponent about a substantive matter?

• A. A barrister may communicate with the court in opponent's absence anytime.
• B. A barrister must not communicate in opponent's absence unless ex parte or with consent to specify manner.
• C. A barrister may only communicate with the court if the opponent has filed a motion.
• D. A barrister may communicate with the court if the witness is unrepresented.

Answer: (B)

The rule being tested is that you may not speak with the court about a substantive issue while the opponent is absent, except in two limited circumstances: the matter is being dealt with ex parte, or the opponent has given consent specifying how the communication may occur. This protects fairness, ensuring both sides have a chance to respond and that the court isn’t influenced without the other party’s opportunity to participate.

Ex parte communications are allowed only in specific, typically urgent or court-ordered situations, and even then, there are usually requirements to give the other side notice as soon as practicable. If the opponent consents to the manner of communication, the barrister may proceed in the specified way. Outside these exceptions, discussing substantive points with the court in the opponent’s absence would undermine the adversarial process.

The other options are inconsistent with this principle: communicating anytime without restriction would undermine fairness; requiring a motion to be filed by the opponent is not the general requirement for such communications; and having a witness unrepresented does not change the rules about ex parte or consent-based communications.