5: Conduct of the Hearing
This chapter examines the basic responsibilities
of an administrative law judge in conducting the hearing and ensuring
an orderly and fair presentation of the evidence and issues to
It is the responsibility of the ALJ to conduct
the hearing in such a manner so that the issues presented for
resolution are determined fairly, according to all parties' full
and reasonable opportunity to present such evidence as may be
relevant to the issues involved. The ALJ's corollary responsibility
is to exercise such control as is necessary for the orderly, effective
and reasonably expeditious progress of the hearing.
The ALJ must conduct the hearing so as to give
the clear impression that it is not a contest for advantage by
the use of technicalities, but rather an informal and searching
inquiry into the facts and law of the case.
While adjudicatory proceedings are informal, they
should be conducted with dignity and decorum. Informality should
not be synonymous with chaos or a free-for-all. Informality is
not inconsistent with orderliness and only means an absence of
unnecessary and time-consuming technicalities. It provides flexibility,
enabling adjustment to varied conditions and circumstances. The
ALJ should create a relaxed and placid atmosphere which is conducive
to the free flow of information.
In sum, an adjudicatory proceeding must not only
be a fair hearing in fact, but it must also have the appearance
of a fair hearing. Assuring such fairness is the goal of the ALJ.
There are some preliminary activities that the
ALJ should undertake which will help a hearing move along with
reasonable dispatch. Initially, the ALJ should ensure that the
hearing room is suitably arranged with tables and chairs for the
parties and their attorneys, the stenographer, if any, and the
ALJ. Additionally, the ALJ should make sure that the hearing room
is physically comfortable, e.g., proper heating, lighting.
When a stenographer is being used, the ALJ should provide the
stenographer with a brief and basic agenda for the hearing, and
assign responsibility for hearing details such as swearing in
of witnesses and the marking of exhibits. If a recording device
is being used, the ALJ should ascertain that it is properly working.
Parties, their attorneys and witnesses should
be pleasantly received by the ALJ and made to sense the informality
of the proceeding. If one party appears early, the ALJ should
refrain from engaging in conversation. The concern is that the
other party may later claim that the merits of the case had been
discussed in the party's absence and that the ALJ was influenced
The hearing should commence promptly at the time
fixed in the notice of the hearing. A reasonable leeway may be
allowed whenever local transportation, parking or weather conditions
may be the possible cause of delay in attending on time.
Failure to start on time causes unnecessary irritation
to all concerned. It may prevent the hearing from being concluded
in a single day, may cause delay in expediting the day's calendar,
and may affect the full disposition of later scheduled cases.
Before opening the hearing, the ALJ should ascertain
the identities of the parties, their attorneys and witnesses.
The ALJ should obtain the correct spelling and pronunciation of
their names and also their addresses, and should then have recorded
on the minutes of the hearing, as well as in the ALJ's own notes,
the name, official title and the interest of each person appearing.
Although the ALJ may well know the personnel who
represent the agency, the ALJ should not carry on any conversation
not related to the hearing with them, either business or personal,
in the presence of parties and their attorneys. The ALJ should
always address them at the hearing by their formal names, never
by first names or nicknames. As innocent as these acts may appear
subjectively, experience has shown that they can give an erroneous
and harmful impression. The outsider will frequently claim that
the camaraderie or the idle talk between the ALJ and agency personnel,
gave obvious proof of favoritism or that the case was "rigged"
against the party.
Before taking proof, the ALJ should identify himself/herself
by name and official title. The ALJ should make a brief statement
indicating that the ALJ is an impartial adjudicator. The ALJ should
then reference the Notice of Hearing, and briefly summarize the
purpose of the hearing, the issues involved, the possible consequences
of the determination of such issues, the parties' procedural rights
and under what law or section thereof or under what rules and
regulations, the hearing is being held. If any party or attorney
disagrees with this summary, they should be heard, and any necessary
modifications made on the record by the ALJ. In some cases, especially
protracted ones, it may be useful to outline briefly what procedure
will be followed to complete the case.
Such opening statement by the ALJ will help the
parties understand the nature of the hearing and its procedure,
and will help set the appropriate tone for the hearing. The content
of the opening statement will vary according to the parties at
the hearing, and the nature of the issues to be resolved. For
example, if a party is represented by an attorney, it may not
be necessary to give a detailed explanation, and instead give
a brief explanation. Where complex issues are presented for determination,
a detailed statement may be more appropriate.
The ALJ should also inquire at this time as to
whether the parties intend to offer into evidence any exhibits.
If so, the ALJ may consider having them marked at that time, or,
if there are numerous exhibits, at the first time when there is
a break in the presentation of proof. Such pre-marking of exhibits
will make for a more orderly presentation of proof.
The ALJ should ask before the taking of proof
starts whether the parties wish to make an opening statement.
The opening statement gives each party an opportunity to set before
the ALJ the "story" which the party's ensuing proof will tell.
Opening statements by the parties should be encouraged,
since they summarize the issues and outline the positions of the
parties, allowing them to begin their presentation in a more informal,
less stressful manner. However, they are not legally necessary
and a party may decline to make an opening statement. No adverse
inference should be drawn from such a decision.
The order of proof, discussed infra,
will determine which party has the right to make the first opening
statement. The other party then has the opportunity to make an
opening statement. The ALJ has the discretion to permit the responding
party to delay making an opening statement until the time the
party presents its case. Such discretion should be exercised,
however, only for good reasons.
If a party fails to appear for the scheduled hearing
and a reasonable time has elapsed since the hearing's scheduled
starting time with no word from the party, the ALJ has two options.
These options, however, may be pre-empted by regulations adopted
by the agency.
First, the ALJ may adjourn the case. This option
should be considered where there is no substantial inconvenience
to the party who appears. A record should be made, noting appearances,
the non-appearance of the defaulting party and the reasons for
Second, the ALJ may proceed with the hearing and
obtain the testimony of those present. On the basis of such testimony
and exhibits admitted, the ALJ may decide the case. Such option
may be appropriate where there is substantial inconvenience to
the party who appears, and/or there is a strong probability that
the non-appearance is deliberate and that the party has abandoned
his/her case. If the decision of the ALJ is adverse to the non-appearing
party, the ALJ may consider granting the party leave to reopen
the case within a reasonable time, which application must be supported
with a showing of good cause for the non-appearance and merit
in the party's case or defense.
In an adjudicatory proceeding, there is no fixed
order of proof. Ordinarily, the order of proof should follow the
burden of proof. Thus, in the case of enforcement actions against
a private party initiated by an agency, the agency will go first
in presenting evidence, followed by any private parties upon the
completion of the agency's case. Where a private party seeks a
benefit from the agency, the private party goes first in presenting
evidence, followed by the agency upon the completion of the private
The party who goes first in presenting evidence
will present the proof, testimonial and/or non-testimonial, that
the party believes is necessary for securing the sought-after
relief. The order in which witnesses and exhibits are presented
is generally left to the parties themselves.
When presenting testimony, the party will conduct
a "direct examination" of the party's called witness, eliciting
that witness's relevant knowledge. After direct examination, the
other party gets a turn to ask questions, this time by "cross-examination."
When cross-examination is finished, the calling party may engage
in "redirect examination," questioning the witness on matters
brought up on the cross-examination. The other party may then
engage in "recross-examination," questioning the witness on matters
raised on redirect. The parties may then engage in further similar
round(s) of questioning, provided the questioning does not become
Upon completion of the examination of the initial
witness, the party may then call other witnesses, and the same
process is engaged in with such other witnesses. When the party
has finished calling witnesses and introducing exhibits, the party
At that time, the other party may then present
evidence, testimonial or non-testimonial, on the issues raised
by the initiating party or other relevant issues, to show that
the initiating party is not entitled to the relief sought. The
witnesses called will be subject to the same manner of examination
previously described. Once the party has finished calling witnesses
and introducing exhibits, the party will rest.
After both parties have put on their case, the
party who went first has a "rebuttal" opportunity. Rebuttal is
generally limited to denying some affirmative fact that the other
party has attempted to prove. It may not be used simply to put
in additional proof that could have been presented during the
party's initial presentation of proof. Once a rebuttal case is
made, the other party has a similar opportunity. The presentation
of witnesses during rebuttal is subject to the previously described
mode of examination.
It is important to stress that when a party is
presenting the party's case, the other party should not be permitted
to interrupt for the presentation of the party's case through
the calling of witnesses and/or introduction of non-testimonial
proof. The other party must wait until the opposing party rests.
The only interruption that is permitted is through cross-examination.
By not permitting such interruption, other than by cross-examination,
the most effective presentation of each party's case should be
During the hearing, it may be expedient to obtain
from the parties a stipulation that certain facts or events are
to be accepted as true or as having occurred. Stipulations are
agreements made between parties as to the existence of certain
facts or events. They are useful short-cuts. They save time which
would be otherwise consumed by repetitive testimony on matters
of fact which are not really in dispute, which therefore add nothing
but volume to the hearing.
Entering into a stipulation can be initiated by
a party, both parties or the ALJ. The ALJ should not suggest the
making of a stipulation unless both sides are represented or unless
an unrepresented party fully comprehends its significance and
effect. The ALJ should be satisfied that both sides fully realize
what a stipulation is and the use which will be made of it at
the hearing. Caution must be exercised not to force the parties
to enter into a stipulation.
Stipulations can be made orally or in writing.
If the stipulation is made orally, its contents should be discussed
fully off the record, and then incorporated into the record. The
written stipulation, too, will become part of the record. Where
stipulations are made, the rights of appeal or review of all parties
should be preserved and protected.
Orderly procedure requires parties and their witnesses
to testify in sequence. It is within the discretion of the ALJ
to vary this order as the exigencies of a case require. For example,
it may be necessary or desirable to break the sequence in order
to accommodate the other party's witnesses or to expedite the
hearing or to conclude a case more quickly.
There exists in administrative adjudicatory proceedings
a power to subpoena witnesses to testify at a hearing and to subpoena
documents to be produced at a hearing. Such subpoena power is
conferred by SAPA §304(2) and specific statutes granting
agencies such power, as well as CPLR Article 23.
Subpoenas can be issued by an attorney for a party
at the hearing. There is no need to request the ALJ to do so before
the attorney issues it. Where a subpoena is properly requested
by a party, the courts have held that the issuance of a subpoena
is a matter of right and not a matter of discretion for the ALJ.
Most statutes governing the issuance of subpoenas
by the ALJ, as well as agency regulations, permit the service
of issued subpoenas by registered mail. Otherwise, the subpoenas
must be served in person upon the person designated therein. In
order for the service to be valid, any person subpoenaed must
be paid or tendered in advance authorized traveling expenses and
one day's witness fee. It is the obligation of the party requesting
the issuance of the subpoena to make payment.
When the party subpoenaed fails to respond, either
by not personally appearing at the hearing or not producing the
subpoenaed documents, the ALJ may adjourn the hearing. Enforcement
of subpoenas is handled in the courts and not by the ALJ.
A witness must declare by oath or affirmation
that the witness will testify truthfully as a precondition to
testifying. The difference between an oath or affirmation is that
an oath mentions God and an affirmation mentions perjury. No legal
significance attaches to the distinction between an oath or affirmation.
The requirement of an oath or affirmation adds
a touch of solemn ceremony and desirable degree of formality and
decorum to the hearing. Additionally, the making of an oath or
affirmation has a profound effect upon most individuals. It gives
some assurance of veracity, acting as a strong deterrent to the
falsification or coloring of testimony. It also establishes a
legal basis for a criminal perjury prosecution.
It must be recognized that the choice whether
to take an oath or affirmation rests with the witness. Some witnesses,
because of religious or other scruples of conscience, will not
take an oath because it invokes the name of God. They should affirm
The following forms are suggested. For an oath:
"Do you solemnly swear that the testimony you will give will be
the truth, the whole truth and nothing but the truth, so help
you God?" For an affirmation: "Do you solemnly affirm that the
testimony you will give will be the truth, the whole truth and
nothing but the truth, under penalty of perjury?"
If the witness refuses to take an oath or affirmation,
the witness must not be permitted to testify. The ALJ must explain
this fact to the recalcitrant witness. If the witness has some
objection to the suggested form, it can be modified, provided
that the oath or affirmation taken reflects a clear commitment
to testifying truthfully.
Each witness should be sworn individually, immediately
prior to the giving of testimony. No more than one witness should
be sworn at one time. Mass swearing of witnesses is irregular
and undesirable. It dissipates the effectiveness and solemnity
of the oath or affirmation.
The administering of the oath or affirmation should
not be slurred over quickly but should be done, whether by the
ALJ or stenographer, in a solemn, dignified manner, to impress
upon the one taking the oath or affirmation, its importance and
Once a witness is sworn, it is not necessary to
swear the witness again when the witness resumes testifying, whether
after a recess, adjournment or upon recall. The ALJ may note for
the record that in such instances the witness is still under oath
It is highly unnecessary and it creates an intimidating
atmosphere in the hearing for the ALJ to warn a witness that the
taking of an oath or affirmation carries with it the penalties
of perjury. That has a criminal connotation which does not belong
in an administrative hearing. If a witness has sworn falsely to
a material fact, that action should be weighed in evaluating the
witness's testimony and may be the subject of comment in the final
decision. It is wise to omit any reference to perjury in the course
of the hearing or in the decision. The ALJ can achieve the same
effect by characterizing false testimony as unworthy of belief.
Where a witness is unable to speak or understand
the English language, there will be a need to receive the witness's
testimony through an interpreter. As far as possible in advance
of the hearing, it should be ascertained whether an interpreter
will be needed. Arrangements can then be made to utilize the services
of a person who has sufficient linguistic ability to be used as
an interpreter. The agency involved in the hearing should maintain
a list of persons qualified as interpreters in various languages.
It is inadvisable for the ALJ or any agency representative
participating in the hearing to act as an interpreter. Such practice
provokes criticism and charges of partiality. On the other hand,
the party calling that witness may bring an interpreter, and it
is proper to use that interpreter. In such instances, the ALJ
must be satisfied that the interpreter is able to translate to
and from English and the other language.
It is necessary that an oath or affirmation be
administered to the interpreter before the interpretation begins
(see, Oaths and Affirmations, supra). The oath
or affirmation will declare that the interpreter is making a true
translation, i.e., communicating exactly what the witness
is expressing in the witness's testimony. For the interpreter,
the following form is suggested:
"Do you solemnly swear (or affirm)
that you will truthfully and accurately translate all questions
put and all answers given, to the best of your ability (so help
It may be appropriate for the ALJ to caution the
interpreter to listen carefully to the questions in English and
then to translate them intelligibly, word for word, to the party
or witness and then to translate the answers into English, using
the exact, definitive words. The interpreter cannot be allowed
to edit the questions or answers. The answers must always use
the first person. If the question is "Did you speak to Mr. White?"
the answer must be "I did (or did not)" not "He did (or
The interpreter must not use individual concepts
of translation to and from the foreign language. Furthermore,
the interpreter must not paraphrase, summarize or amplify questions
or answers; must not use the cloak of the foreign language to
aid or harm the person questioned by changing the questions or
answers; and must translate literally, word for word, including
colloquialisms, slang, etc.
If the ALJ is fluently conversant in the foreign
language being used, and detects a faulty translation or volunteered
statements made by the interpreter, the ALJ should admonish the
interpreter on the record, to translate correctly and literally
all questions and answers. Any party or attorney or witness present
who also knows well the language being used, has the right to
object to faulty translations or volunteered statements by the
interpreter. The ALJ should then consult the interpreter to ascertain
the validity of the objection and then act accordingly.
If the foreign language speaking witness has a
little knowledge of English but not sufficient to understand all
the questions and give all the answers, such witness should not
be allowed to answer some questions in English and some in the
witness's native language. This may lead to confusion and create
some doubt that there has been full comprehension of the questions
in their entirety. In such instances, the foreign language speaking
witness should be instructed to await translation of all questions
and then answer them in the witness's own language.
In instances where the witness is deaf, mute,
or suffers from a physical speaking impairment, there will be
a need for specialized interpreters who can accommodate the needs
of the witness. In such instances, the ALJ should establish that
the interpreter can understand and communicate with the witness.
The ALJ always controls the taking of testimony.
The ALJ can limit the undue extension or repetition of testimony,
whether on direct or cross-examination. The ALJ must keep the
taking of testimony within reasonable bounds and squarely within
the issues. [See, generally, Evidence, Appendix A].
A witness's testimony is taken by the eliciting
of answers to questions. Questions should be truly interrogatory
and not statements or contentions. Only one question at a time
should be asked. If the interrogation consists of multiple questions
put at one time, the ALJ should see to it that they are divided
into single questions. On direct examination, ordinarily the questions
should be non-narrative and non-leading as to form.
A narrative question is one that asks for a broad
recitation of facts without interruption, rather than a single
fact. Narrative questions are not favored because they provide
too much of an opportunity for irrelevant, repetitive, or unreliable
evidence to be adduced. The preference is for short, focused questions
which seek a single item of factual information. However, the
ALJ has the discretion to permit narrative questions, which is
frequently done where the witness has testified on numerous prior
A question is leading when, as one New York judge
has stated, it "puts into a witness's mouth the words that are
to be echoed back, or plainly suggests the answer which the party
wishes to get." Leading questions are not preferred because the
aim of the direct examination is to elicit what the witness knows,
and not what the examiner has knowledge about. Whether the question
is leading will turn upon the form of the question, e.g.,
"isn't it a fact that . . . "; "you know, don't you, that . .
."; as well as the tone of the examiner's voice or body gestures,
the content in which the question is asked, and the tenor of the
testimony already introduced. While the ALJ has the discretion
to permit leading questions, such discretion should be used sparingly
and only when leading questions are truly necessary to develop
the witness's testimony, e.g., witness is infirm or confused.
When leading questions are permitted, the ALJ should ensure that
the witness's answers are based on the witness's own personal
knowledge and that the witness is simply not being told what to
say. Ordinarily, as discussed infra, leading questions
are used on cross-examination.
The ALJ should not permit the bullying or intimidation
of witnesses, nor should the ALJ engage in such tactics. The ALJ
should put a stop to any harangues, acrimony, altercations or
any other form of disorder. The ALJ should not lecture or scold
a witness. If explanations or interpretations of the law are required,
the ALJ should advise the witnesses personally of what is involved,
patiently and calmly. This will insure more accurate and responsive
Except by the lodging of an objection to testimony,
discussed infra, the ALJ should not permit the interruption
of the testimony of a witness by the opposing party, either by
comment or questions. If this occurs, the ALJ should admonish
that party and advise that the party will be heard in due course.
The ALJ as well should not interfere with the development of the
case by making gratuitous comments or observations, by adverting
to collateral and irrelevant matters or by breaking into testimony
before an answer is completed.
Frequently, parties or their representatives will
request that certain witnesses be excluded from the hearing room
while other witnesses are testifying. The grounds of such request
may be to test the credibility of witnesses severally, or to keep
confidential a certain witness's testimony. It is a matter of
discretion with the ALJ to grant or deny the request, depending
upon the nature of the case and the circumstances giving rise
to the request. Remembering that hearings generally should be
open to the public, the ALJ should use sound judgment in passing
upon requests to exclude witnesses from the hearing room.
A reasonable opportunity to test and controvert
adverse testimony and evidence is one of the fundamentals of a
fair hearing. Cross-examination of adverse parties and witnesses
is a traditional and effective means to that end. Most importantly,
as stated in Chapter 3, it is a due process right.
The purposes of cross-examination include the
1.It tests the veracity and credibility of the
2.It brings out information left untouched by
3.It tests the accuracy of a witness's perception
of the matters about which the witness testifies.
4.It tests the extent of the witness's opportunity
to observe those matters as to which the witness testifies.
5.It tests the accuracy and reliability of the
witness's memory of what the witness observed.
6.It tests the accuracy of the witness's narration
of facts and events about which the witness testifies.
7.It tests the basis of an expert's opinion.
8.It may elicit from a witness concessions or
admissions which will, in effect, remove certain disputed issues
from the case.
A cross-examination which has one of the above
purposes as its object must be permitted.
However, the right of cross-examination does not
include the right to an unlimited cross-examination. The ALJ has
the discretion to prevent cross-examination which is becoming
repetitious as well as cross-examination that is delving into
irrelevant or collateral matters, provided it does not jeopardize
the basic fairness of the hearing. In close cases, it may be preferable
to permit the questioned cross-examination, lest the denial or
limitation thereof become a significant issue on judicial review.
It must be noted that the right of cross-examination
extends only to witnesses at the hearing. The right does not extend
to persons who have prepared records or documents when those records
or documents are admitted into evidence, or to persons whose statements
are testified to by others at the hearing. (See, Evidence,
Appendix A). Any possible unfairness is ameliorated by SAPA §304(2)
which allows parties to request the ALJ to issue a subpoena requiring
persons to testify, as discussed in Subpoenas, supra.
An affidavit is a sworn statement in writing made
by a person under oath wherein the person states facts within
the person's personal knowledge. It is in some ways the written
equivalent of the person testifying at a hearing or trial.
The fact that the affidavit is sworn to does not
make it equal in effect to sworn testimony at a hearing, where
all testimony is subject to further examination. Instead, the
admission into evidence of an affidavit, in lieu of the person
testifying as a witness, raises a basic question of fairness.
The opposing party cannot cross-examine a piece of paper. Its
admission can deprive the opposing party of the right of cross-examination.
Furthermore, it may be totally self-serving and detrimental to
the position of the opposing party, without giving that party
the right to refute it by cross-examination.
Whether an affidavit in lieu of the person making
the affidavit testifying as a witness is admissible is subject
to the discretion of the ALJ. The discretion should be exercised
on the basis of the affidavit's reliability. (See, Evidence,
Appendix A). Due concern should be given to its self-serving nature
as well as the reason why the maker of the affidavit is not present,
testifying as a witness.
In some instances, affidavits can be readily admitted.
Thus, if the opposing party has no objection to their introduction,
they can be accepted as evidence. Also, affidavits can be received
as to collateral matters, not affecting the material issues in
Ordinarily, a case will be presented and developed
by the parties' questioning of witnesses. However, consonant with
the ALJ's obligation to assure that the hearing is fair to all
parties and to develop all facts necessary for a complete and
just decision, the ALJ is permitted in the exercise of discretion
to question any witness called by the parties.
The discretion to question should be exercised
sparingly. It is not a license to take over questioning merely
because the ALJ believes the ALJ can do a better job. Questions
by the ALJ should be limited to clarifying confusing testimony
of a witness which is not clarified by the questioning of a party,
or which is confusing as a result of a party's questioning, and
to instances when a party fails to elicit vital and necessary
information. As to the latter, the ALJ should question to develop
When the ALJ engages in questioning of witnesses,
the ALJ must not act as if the ALJ were the advocate for one party
or the other party, and avoid any partisan attitude by such questioning.
The use of leading questions should only be used as a last resort.
In short, the ALJ must always maintain the ALJ's status as an
Non-testimonial proof, whether it be documentary
evidence, real evidence, or demonstrative evidence, may be offered
into evidence as exhibits. Whether the offered exhibits are admitted
into evidence is subject to the ALJ's discretion. (See,
Evidence, Appendix A).
When an exhibit is offered, it should be marked
"for identification," unless the agency's practice is to receive
into evidence all exhibits. Preferably such marking for identification
can take place before the taking of proof is commenced or during
a recess. Upon the ALJ's ruling that the exhibit is admitted into
evidence, the exhibit should then be marked as "received in evidence."
Exhibits should be marked in consecutive order.
It is advisable to distinguish the markings of exhibits; for example,
all exhibits of the agency marked in Arabic numerals, 1, 2, 3,
etc., and all other exhibits marked by letters, A, B, C, etc.
This arrangement can be varied, as long as it is consistently
The exhibit can be marked by the ALJ or the stenographer.
The marking should be done in such place upon the exhibit so that
the marking will not obliterate any printing or writing thereon.
The reverse side can be used. The marking should indicate the
date of the hearing. Exhibit labels should be utilized.
It makes for clarity of the record to read into
the record a statement that the exhibit has been marked and received
in evidence and also a brief description thereof, such as a "letter
from A to B dated . . . . . ." or "contract between C and D, dated
. . . . . ." If the exhibit is a short memorandum or letter or
a brief ledger entry, it can be read in its entirety into the
If a bulky exhibit such as a book or ledger or
a mass of time cards or statistical tables is received in evidence,
the ALJ should read into the record a general description thereof.
If only a certain portion or page is received as an exhibit, it
should be described verbatim and the exhibit marking placed on
the particular portion or page.
Under SAPA §306(2), all records and documents
in the possession of the agency becomes part of the record of
the hearing. To prevent confusion later on, such records and documents
should also be marked "received in evidence" with the other received
If reproduction facilities are readily available
to the ALJ, they should be used freely to reproduce exhibits or
parts thereof, especially when such exhibits must be returned
to parties, or the opposing party needs a copy in order to cross-examine
regarding it or otherwise respond to it. This can be done either
during the hearing or immediately after.
Exhibits should be retained in the file until
the case is completed and the time for possible appeal or judicial
review has expired. If necessary, they can be returned thereafter
to the parties producing them and appropriate record made of such
return on the file and the date thereof. If there is appeal or
review, the exhibits go with the file and remain there until final
disposition of the case. Before transmission of the file to the
next authority, the exhibits should be arranged in order and checked
to assure a complete record.
When a party wants to keep the opposing party's
evidence out, thereby preventing it from becoming part of the
hearing record, it is necessary for the party to make an objection.
If no objection is made as to a witness's testimony in whole or
in part or to an offered exhibit, the testimony or exhibit is
received into evidence. The ALJ may then consider such evidence
and give to it the weight the ALJ believes it deserves. Additionally,
the failure to object may bar the party against whom the evidence
was admitted from arguing on judicial review that the evidence
should have been kept out by the ALJ.
Under SAPA §306(1), the ALJ must allow the
parties an opportunity to object to offered testimony, and the
making of the objection must be noted in the record. There is
no required form that the objection must take. Generally, the
objection, whether in the form of an objection to a question to
a witness or to an offered exhibit, e.g., "I object,"
or in the form of a motion to strike a witness's answer or an
admitted evidence, e.g., "I move to strike," must be
"timely" made. This means that the objection should be made at
the time the question is asked or the exhibit offered, or a motion
to strike made promptly after the witness blurts out an answer
or the ground for objection becomes apparent. Objections made
beyond this time frame need not be entertained by the ALJ. Of
course, the ALJ can give to that evidence whatever weight it deserves.
Frequently, the party will provide the basis for
the objection. Where the basis is not given, and the ALJ is unsure
as the possible reason why the evidence should not be admitted,
the ALJ may ask the party the basis for the objection. The ALJ
also should ask the party who offered the evidence whether it
has any responding argument for admissibility.
As the technical rules of evidence do not apply
in adjudicatory proceedings, there is no need for the ALJ to become
entangled in legal arguments as to the admissibility of evidence.
Indeed, the ALJ should discourage the making of legal arguments
or lengthy "speeches" wherein the party spews out all the reasons
why the evidence is inadmissible or admissible.
Once the objection is made, and the ALJ understands
the basis for the objection and the offering party has an opportunity
to respond to the objection, the ALJ must rule on the objection.
Except in instances where there are compelling reasons to do so,
the ALJ must presently rule on the objection and not defer a ruling
to later in the hearing. To delay a ruling may jeopardize the
orderly progress of the hearing.
Where the ruling is one that keeps out evidence,
the ALJ upon request should provide the party who offered the
evidence an opportunity to make an offer of proof regarding the
excluded evidence. An offer of proof is the means by which the
offering party describes in summary fashion the content and nature
of the excluded evidence. It is made for purposes of judicial
review, so that the appeals court can determine whether the ruling
was prejudicial to the party's case. Such offer of proof is recorded
in the transcript of the hearing, but cannot form a basis for
the ALJ's decision.
For a discussion on ruling on evidentiary objections,
see Appendix A: Evidence.
An administrative adjudicatory proceeding, similar
to court trials, is often the arena of conflict. The affirmative
action of an agency or a party sparks resistance by the opposing
side. Parties come to the hearing, prepared to do battle. There
may be antagonism and hostility in the air.
The ALJ must have complete control over the hearing
and must not let it get out of hand. The ALJ must be above the
battle, and should be the calmest person in the hearing room.
The ALJ should use a firm hand and set the tone of the hearing
through his or her dignified conduct, despite any provocations.
Mannerisms suggesting impatience or indicating the lack of time
for a full exploration of the facts should be avoided.
When parties, attorneys, or witnesses engage in
disruptive acts, such as shouting at the ALJ, opposing party or
witness, or openly disregarding or mocking a ruling or request
from the ALJ, the ALJ must immediately exercise control. Parties,
attorneys, and witnesses must not be permitted to engage in acrimonious
exchanges, vulgarities or abuse of each other or the ALJ, nor
should they be allowed to make offensive or insulting comments.
Unlike a judge, the ALJ has no power to punish
parties for behavior akin to contempt. The ALJ must resort to
other reasonable means to control the hearing. At a minimum, the
ALJ can set a contrasting example when disorder arises by speaking
in natural, low-keyed tones, and by refraining from outshouting
the disorderly person.
The very first time a disruptive act is committed,
the ALJ should admonish the offending person, reminding the person
that such behavior does not contribute to a fair hearing and impedes
the orderly disposition of the case. The ALJ should assure the
party that they will be given a full opportunity to speak at the
If the offense is repeated and further admonition
appears fruitless, the ALJ may exclude from the hearing disorderly
person(s), other than the parties and their attorneys. If the
ALJ is unable to obtain compliance with reasonable directions
or admonitions to parties and their attorneys, the ALJ may, as
a last resort, adjourn the hearing. Such adjournment may result
in the cooling down of tempers. If resorted to, it should be accompanied
with a warning that if such behavior resumes, a default may be
entered against the party.
In dealing with an attorney, the attorney should
be reminded that the standards of conduct required of attorneys
appearing before state courts by reason of the Code of Professional
Responsibility are equally applicable in hearings in administrative
law cases. Ordinarily, there should be no threat made to the attorney
that the ALJ will send a copy of the transcript noting the objectionable
behavior to the pertinent Grievance Committee.
However, if such behavior continues, such a threat
can then be placed on the record, and, if the behavior does not
then stop, a transmittal to the Grievance Committee may be appropriate.
Ordinarily, losing the case is not an appropriate
penalty for the disorderly party's conduct or the offensive conduct
of the party's attorney or witness, so long as there is some merit
to the party's position or the party has not been fully heard.
In the event a party's conduct is so flagrant it may prevent the
completion of the case, it may then be tantamount to a default
of proof. In that event, the party should be warned of the consequences.
Where there is a failure to comply with the admonitions and warnings
of the ALJ, the ALJ may close the case. A party may be permitted
to reopen the case upon submitting an offer of proof or argument
in orderly fashion. In this kind of difficult situation, the ALJ
must exercise extreme patience and tact. An offensive party may
have a meritorious case and should not lose it solely because
of bad manners.
When a party appears at the hearing without representation
and it is apparent that the party has little understanding as
to the nature of the hearing, and lacks familiarity with its procedures,
the ALJ must act carefully. On the one hand, the ALJ cannot become
the party's advocate. That would cast the ALJ in an adversary
role rather than as a neutral. On the other hand, the ALJ cannot
just sit back and let the unrepresented party be taken advantage
of or lose the hearing merely because the party did not know what
Without favoring the unrepresented party, the
ALJ must guide the party through the hearing. It is the ALJ's
duty to conduct the hearing so that a full and complete record
of all the relevant facts is made. Thus, the ALJ should ask and
inquire of the party what the party's contentions are and what
the party wants to prove. The response can then guide the ALJ
as the hearing progresses.
The ALJ may also find it necessary to explain
to such party the significance of references to statutes, rules
and regulations referred to in the Notice of Hearing and the testimony.
The ALJ may have to summarize in simple language the testimony
of other witnesses if the ALJ senses that an unrepresented party
has not understood its meaning and significance. The most effective
way to deal with unrepresented parties is to put simple and short
questions to them, making certain that they understand each stage
of the hearing before proceeding to the next. By gentle interrogation,
the ALJ will make the parties feel at ease and more readily responsive
to all questions.
The ALJ may also have the responsibility of questioning
the unrepresented party, not only to develop all the facts but
also to assist the party in presenting the party's case fully.
As to other witnesses called by the party, the ALJ may need to
question them, especially when it is obvious the party does not
know how to conduct a meaningful examination. This responsibility
also extends to cross-examination of the represented party and
that party's witnesses. Additionally, the ALJ may need to protect
the party from objectionable cross-examination.
Lastly, it bears repeating that the ALJ must keep
in mind the distinction between the limited role of assisting
the unrepresented party and the partisan role of advocate for
During the course of the hearing, there may be
a need to take brief recesses. It is not expected that the ALJ
and the parties can and will work straight through the day without
any breaks. Recesses are appropriate as well to await the appearance
of a witness or production of a document. Recesses should be called
only at an appropriate stage of the proceeding, e.g.,
lunch time, close of examination of a witness, or at an appropriate
time during the examination of a witness. Recesses should not
be called at the request of a party when it may give that party
a tactical advantage, e.g., disruption of an effective
cross-examination of the party's witness.
Adjournments of hearings, e.g., scheduling
of the continuation of the hearing to another day, should be kept
to a minimum, as much as possible. They should be in keeping with
a purpose of such hearings, namely, to achieve speedy justice.
Unwarranted adjournments delay disposition of cases unreasonably.
They should be granted only for good and sufficient reasons.
An adjournment may be directed or granted by the
ALJ in the ALJ's discretion, either on the ALJ's own motion or
on application of a party. If adjournment is granted, the ALJ
should explain to the persons present the reasons therefor.
There are good reasons for adjournments. If new
and relevant matters develop in the course of a hearing, which
either party is unprepared to meet and surprise is claimed, it
is fair to adjourn the hearing to afford opportunity for investigation
and preparation. If settlement can be achieved, an adjournment
to advance this end is proper.
Adjournments should be granted as a matter of
right when a legal excuse is offered. A legal excuse may include
illness of a party, attorney or witness; the absence from the
jurisdiction for compelling reasons of a party, attorney or witness
or the engagement in court of an attorney for a party; or the
failure of a person to respond to a subpoena.
Requests for adjournment which are palpably made
for the purposes of delay or harassment should be denied.
Once the parties have professed to have offered
and entered all their evidence, it has been found most efficacious
to have the ALJ ask this final question of each party, "Have you
anything else to add?" Experience has demonstrated that the results
are most revealing.
Many persons have been conditioned by the dramatics
of a stage, movie or television presentation of a court room scene.
They may have ingrained within them the belief that all questions
must be answered "yes" or "no." They may believe that it is not
their responsibility to give vital information affecting the merits
of a case unless they are asked a specific question with relation
thereto. Further, many parties, inexperienced in testifying, fail
while under examination, to develop their cases fully. This question
gives each party a welcomed opportunity to complete his or her
story. Of course, the ALJ must exercise sound judgment and discretion
to keep such additional proof within the bounds of the hearing.
When there is no further evidence to present,
each party should be given the opportunity to make brief closing
statements. Such closing statements are an opportunity for the
parties to summarize the evidence presented on the parties' behalf,
and to argue why such evidence should be credited and why the
opposing party's evidence should be rejected. The order of making
the closing statements is subject to the ALJ's discretion, but
it should generally be in the reverse order of the opening statements.
After the parties make their closing statements,
the ALJ should make a closing statement. It should include a statement
that the parties have had full opportunity to present their cases;
state the stipulations to which both parties have agreed; arrange
for the submission of briefs, when appropriate; announce that
the record is closed; and state the time the hearing has concluded.
Decision should be reserved in every case, unless
the policy and practice of the agency requires otherwise. The
ALJ should not intimate in any manner what the decision may be.
No promises or commitments to the parties as to the decision,
its nature, its effect, or when it will be served should be made.
The Record will consist of a transcript of the
hearing, whether stenographically made or electronically recorded,
and all exhibits entered into evidence, including the contents
of the agency's file that are admitted.
The hearing record must be complete and clear.
Upon appeal to an administrative tribunal, or upon judicial review,
informed and fair judgment can be rendered only on a complete
record. A record's reliability is seriously impaired if there
are any gaps therein. Every word spoken in the course of the hearing
must be recorded.
All exhibits admitted must be included. Nothing
can be omitted by direction of or in the discretion of the ALJ,
the stenographer or any party or attorney, except as set forth
in "Off the Record," infra.
A record must be made at every hearing session,
even when there are no appearances at all or where one party has
defaulted by failing to appear. In either event, the ALJ should
recite into the record the facts that the case was scheduled for
a specific time, who appeared and who defaulted, and that the
case was either adjourned or closed. If a party requests an adjournment,
a record should be made stating that the request was made and
the action taken thereon. The history of every case must show
what happened at each scheduled hearing and the action taken as
to adjournment or disposition of the case.
It must be underscored that the ALJ's decision
stands or falls on the record only. When a case is appealed, neither
the reviewing administrative tribunal nor the court can reconstruct
what happened at each scheduled hearing, except by reference to
the record taken. The record must be complete and unambiguous.
The ALJ should be constantly aware of the fact
that the record the ALJ is making may be subject to review, either
on an administrative or judicial level. The record must be clear,
leaving nothing to doubt or speculation.
The record should always indicate the identity
of the person speaking and of those of whom the witness speaks.
Persons referred to in testimony as "he," "you," etc. should be
identified on the record immediately. If a witness speaks of a
person as a "boss," "supervisor," "foreman," "co-worker," "partner,"
etc., the person intended should be identified by name. The ALJ
should interrupt immediately to have the person being referred
to identified. If a witness testifies as to transactions or communications
in person with an agency official or employee, the witness should
be asked to identify such person. If unable to do so by name and
title, the witness should be asked to describe the person intended
and the location of the place where the witness made contact with
Whenever a proper name is given in testimony,
the ALJ should require it to be spelled out the first time mentioned.
The spelling of proper names should not always be assumed. For
example, there is more than one way to spell the familiar name
of "Smith" and there are many variations in spelling "Cohen."
If dates are relevant in a case, the day, month
and year should be given each time an event is mentioned.
Addresses should be clearly recorded in full.
If unfamiliar to the ALJ or the stenographer, they should be spelled
If form numbers, code numbers, symbols, abbreviations,
technical terms, shop jargon, etc. are used in the hearing, the
ALJ should have them described in language simple enough for all
persons present to understand them and also for the benefit of
anyone reading the transcript.
More than one person should not be permitted to
speak at the same time. If a stenographic record is being made,
the stenographer cannot record testimony accurately under such
conditions. If the record is being made by machine, more than
one voice speaking will result in an unintelligible jumble of
Witnesses who reply to questions by shaking their
heads or emitting sounds of assent or dissent should be admonished
to answer verbally, or in words, so that what they intend to say
may be transcribed or recorded.
Whenever an exhibit is referred to in testimony
or argument, it should be designated by its exhibit marking or
a description thereof. If any other paper, form or document, not
an exhibit, is referred to, it should be described briefly. The
ALJ may interpose such identification on the record.
If physical acts take place in the course of a
hearing, which are relevant to the record, such as a party, witness
or representative coming into the room after the hearing has commenced,
or any such person leaving the room with or without being excused
therefor, the ALJ should note on the record what happened.
These suggestions are not minor matters. They
are vital to make a good, complete and clear record. Exactitude
makes for clarity.
Going off the record is a familiar device employed
in court actions. The judge may do this on the judge's own motion
or the judge may grant the request of an attorney or witness to
do so. The same practice prevails in administrative hearings.
It is a useful tactic and may expedite the hearing.
Ordinarily, going off the record, if not explained,
may arouse suspicion and give the impression to those who review
the record administratively or judicially, that the record is
not complete, that something vital to the case is missing.
The practice of going off the record may be resorted
to for salutary and useful purposes, e.g., to clarify
and simplify the germane issues, to save time, to explain the
statute, rule, regulation or procedure involved; to expound the
purpose of the hearing if doubt arises, to shorten the record,
thus reducing its expense; to avoid confusion or to omit tedious,
repetitive testimony or evidence on matters about which there
is no serious dispute.
To illustrate, where books, records, audits, detailed
accounts or voluminous documents or contracts are the subject
matters of interrogation, it is wise to go off the record to identify
and pinpoint the pertinent items involved, to mark off such portions
thereof which are germane and encompassed by the issues or to
extract therefrom only the necessary information. Other examples
of the propriety of going off the record are to determine the
relevancy or materiality of a certain line of testimony, to keep
such testimony within the issues of the case or to discuss whether
or not certain evidence is necessary to the case and should be
received or to curtail fishing expeditions which add nothing to
the case except volume.
However, and this must be heavily underscored,
it is vital to the completeness of the record and to do justice
to all parties, that on resuming the record, the ALJ should make
a statement on the record as to why the ALJ went off the record
and briefly summarize what was done, what pertinent information
was elicited or the terms of the stipulation made during such
It is important, too, that parties or their attorneys
should then be asked by the ALJ to confirm for the record, the
summary of the off the record discussion or action. They should
have the right to make statements, amending, amplifying or correcting
the ALJ's summary.
The ALJ is constantly charged with the responsibility
to guard that no relevant matter is omitted from the record and
such responsibility extends to the practice of going off the record.
It must be emphasized that only the ALJ
controls the record. The stenographer must be instructed that
no one but the ALJ can direct going off the record. Statements
by parties or attorneys that what they are saying is off the record
must be ignored by the stenographer. It is only when the ALJ so
indicates that the stenographer may abstain from taking notes.
The ALJ, in the exercise of discretion, may grant or deny the
request of any party to go off the record.
Going off the record should be distinguished from
the taking of a recess for a specific purpose during the course
of the hearing, such as giving the stenographer relief or permitting
telephone calls to be made or awaiting the arrival of a witness
or document. The record should indicate the difference. During
a recess the hearing process halts completely and nothing should
be said or done therein affecting the hearing. All the record
need reflect is that a recess was taken and then that the hearing
Unless an agency has a particular procedure otherwise,
it is not necessary to transcribe the minutes of a hearing, except
where there is an appeal or review of the ALJ's decision or unless
it is necessary in a protracted, complex or precedent-making case
to aid the ALJ in writing the ALJ's decision.
Where the minutes are transcribed, the parties
should be given an opportunity to inspect and copy the transcript,
as well as the contents of the file. Parties should also be advised
of the right to purchase a copy of the transcript at rates fixed
by the agency. Some agencies may furnish such a copy without charge.
Notice of the right to inspect and copy minutes should be given
to parties, according to the particular procedure of the agency.
Parties should also be given the opportunity to
offer corrections to the transcript. Unless the agency has a specified
procedure, "settling" the transcript can be accomplished by having
the party who seeks the corrections circulate the proposed corrections
to the other party and seek that party's consent. Where the parties
cannot agree, the ALJ will have to resolve the dispute.