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Chapter 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 be determined.

Generally

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.

Commencement of the Hearing

Before The Hearing Is Called To Order

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 thereby.

Opening the Hearing

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.

Opening Statements

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.

Non-Appearance Of Party

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 the adjournment.

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.

Presentation Of Proof

Order of Proof

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 party's case.

Mode of Proof

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 repetitive.

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 will "rest."

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 assured.

Stipulations

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.

Variance of Order

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.

Subpoenas

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.

Receipt of Testimony

Oaths and Affirmations

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 their testimony.

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 significance.

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 or affirmation.

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.

Interpreters

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 you God)?"

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 did not)."

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 Taking of Testimony

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 occasions.

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 testimony.

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.

Cross-Examination

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 following:

1.It tests the veracity and credibility of the witness.

2.It brings out information left untouched by direct examination.

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.

Use of Affidavits

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 a case.

Questioning by the ALJ

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 such information.

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 impartial arbiter.

Receipt of Exhibits

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 used.

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 record.

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 exhibits.

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.

Evidentiary Objections and Rulings

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.

Maintaining Order and Decorum

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 appropriate time.

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.

Dealing With Unrepresented Parties

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 to do.

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 the party.

Recesses and Adjournments

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.

Concluding the Hearing

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

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.

Completeness

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.

Clarifying the Record

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 the person.

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 out.

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 sounds.

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.

Off the Record

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 interval.

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 was resumed.

Transcript of Records

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.

 
 
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