What Happens At The Hearing?
When a party arrives for the hearing at a regional Administrative Law Judge hearing location, they should notify the information clerk of their arrival and/or sign the schedule.
The parties (and their attorneys, representatives, witnesses, and any others) are then directed to a waiting area. It is usually a good idea to arrive at the hearing location 10 or 15 minutes early.
The Administrative Law Judge will call the case, and decide who will enter the hearing room. The Administrative Law Judge sits at a desk, and the parties and their witnesses and representatives sit at a table usually set up in front of the Administrative Law Judge's desk. The Administrative Law Judge will direct the parties and witnesses where to sit.
The Administrative Law Judge begins by introducing him or herself by name, and makes sure he or she has the names of all the parties, witnesses, representatives, and attorneys.
Hearings are tape recorded. Later, if a further appeal is taken, the tape recording is typed up as a transcript. It is the transcript that is reviewed at later levels of appeal. It is important for everyone to speak loudly and slowly, and not rustle papers or interrupt others, so that a good recording can be made. This transcript and the documents which are accepted as exhibits become the record of the hearing that is reviewed at higher levels of appeal.
The Administrative Law Judge asks the parties and witnesses to stand and raise their right hands, and administers an oath or affirmation to each of the parties and witnesses, asking them to swear or affirm that they will tell the truth, the whole truth, and nothing but the truth.
The Administrative Law Judge will then identify each of the participants in the hearing for the record, and will summarize the issue being appealed, and what the Agency's previous decisions were in the case.
Often, the Administrative Law Judge may request that the witnesses be sequestered, that is, asked to sit outside the hearing room while the other witnesses are testifying, so that the witnesses will not be influenced by each other's testimony. An Administrative Law Judge may also determine that the testimony of the witnesses will be cumulative, that is, that they will all be testifying to the same set of facts. In that case, the Administrative Law Judge may accept the testimony of only one of the witnesses, and not permit the other witnesses of that party to testify.
The Administrative Law Judge will usually ask the party with the burden of proof to present its case first. There is a more complete discussion of who has the burden of proof, and what that means, under the "Burden of Proof" link.
If the party with the burden of proof has a representative or an attorney, that person will ask the party and the witnesses questions. This process is called direct-examination. If the party with the burden of proof does not have a representative or attorney, either the Administrative Law Judge or the party may ask the questions. Even if the party has a representative or attorney, the Administrative Law Judge may ask additional questions to clarify a point.
After the party with the burden of proof presents testimony, the other party will have the opportunity to ask questions of each witness. This time for asking questions of the other side is called cross-examination. If the party has an agent or attorney, that person will conduct the cross-examination; if the party does not have an agent or attorney, the Administrative Law Judge will conduct the cross-examination, or will expect the party to do so. Then the other party will present direct testimony, and their witnesses may be cross-examined.
Sometimes during a hearing an issue will come up that was not originally part of the case, and was not indicated on the Notice of Hearing. In that situation, the Administrative Law Judge will permit an adjournment to allow the parties to prepare for that issue. If they feel prepared to give evidence on the new issue, the parties can agree to give up their right to an adjournment, and continue with the hearing.
The Administrative Law Judge is responsible for getting all of the information needed to fully understand the facts of the case. An important function of the Administrative Law Judge is fact-finding. That may mean that in some cases, the Administrative Law Judge will take over the function of direct or cross-examination, and it may mean that the Administrative Law Judge will exclude the testimony of some witnesses.
The Administrative Law Judge is also responsible for ensuring that, in general, the rules of evidence are followed in the hearing. For that reason, the Administrative Law Judge may rule that certain testimony is hearsay or is not relevant to the case and cannot be allowed, or that certain documents cannot be accepted, or that the testimony of certain witnesses will not be permitted.
The Administrative Law Judge has the responsibility to direct the progress of the hearing. When an Administrative Law Judge attempts to closely control the hearing, he or she is not being rude. Rather, the Administrative Law Judge is ensuring that the hearing is not delayed with testimony unrelated to the issues.
When the parties or their witnesses live out-of-state, or at a great distance from the hearing location, a conference telephone hearing may be conducted, at the discretion of the Administrative Law Judge.
At the conclusion of the hearing, the parties may be given an opportunity to make closing statements, summarizing their positions on the issues in the case, if the Administrative Law Judge believes such statements will assist him or her in deciding the facts of the case.