- Know the agency. Federal and state governments have many administrative agencies with various names and structures. Staff counsel representing the agency knows the agency, its executive officer or board or commission members, and its regulations. This gives that attorney a clear advantage. Civil procedure or criminal procedure is trumped by administrative law and procedure. And there’s a body of agency precedential decisions that may affect a statutory or regulatory definition. Govt C §11425.60. To counterbalance staff counsel’s advantage, acquire a working knowledge of the agency’s statutory and regulatory framework.
- Know the rules of procedure. In an administrative hearing, the administrative law judge (ALJ) generally sits alone. Govt C §11512. Thus, the persuasive effect of evidence and legal argument is determined by that lone ALJ. Decisions by the ALJ must be reduced to a writing, setting out findings of fact and legal conclusions, within 30 days of submission. Govt C §§11425.50, 11517(c)(1). This timing makes it hard to challenge the ALJ. In an Administrative Procedures Act case, each side, when permitted, may exercise a peremptory challenge (Govt C §11425.40(d)) or challenge an ALJ for cause (Govt C §11425.40), but only if the challenge is brought in a timely fashion. 1 Cal Code Regs §1034. And time is tight generally; given the strong public interest in processing matters expeditiously, administrative practice doesn’t favor the expanded discovery found in civil litigation. Govt C §§11507.5, 11507.6. For example, there are no interrogatories or requests for admission, and depositions only in limited circumstances. Govt C §11511. Plus, absent particular statutory or regulatory provisions, law and motion is severely circumscribed.
- Know how evidence is handled. To a litigator, it’s a bit of a shock to discover that evidence may be elicited outside the scope of direct examination notwithstanding a properly posed objection (Govt C §11513(b), (c)), or that a party’s case-in-chief may be largely presented by affidavit and that a party, absent an objection, may waive an opposing party’s right to cross-examine the affiant. Govt C §11514. But most important is the concept of administrative hearsay. Although it may appear that any evidence is admissible and that any hearsay is equally admissible and weighed, that’s not so. Make timely objections and, even if the evidence is admitted, its weight will be balanced by the ALJ. Govt C §11513.
- Know how to prepare for the hearing. Prepare for an administrative hearing as you would in any other venue, i.e., interview witnesses, examine documents, and anticipate objections. Although an administrative hearing is more relaxed than a court hearing, the ALJ is still subject to internal office expectations to expeditiously process cases, write decisions, and proceed with other matters waiting to be heard. So if you present the matter in a way that demonstrates knowledge of the agency and the law and are prepared, you’ll stand in high regard. To maintain hearing orderliness, keep track of documents as they’re identified and admitted. As a foundation is laid and the document is used, move for its admission. When using Evid C §1560 to admit business records, have copies of the documents sent to you in advance so that you can review what the judge will see and, more importantly, be alert to any deficiencies before the hearing so that you can re-serve your subpoena if you find problems. Don’t hesitate to use a prehearing conference to explore settlement possibilities, effect stipulations, clarify issues, identify or limit witnesses, or elicit rulings. Govt C §11511.5.
- Know what relief is available. Many administrative cases involve professional licenses. In these matters, an ALJ must determine whether culpability exists and, if so, the level of discipline. In other matters, such as citation cases involving contractors, the ALJ must determine whether culpability exists, and if so, the amount or propriety of a fine. The proceedings are not bifurcated; evidence relating to culpability and rehabilitation, mitigation, or extenuation must be presented at one proceeding. This means that your case preparation must include awareness of the range of discipline, the range of penalties or fines, or the availability of other remedial measures that the ALJ may use.
Get expert guidance to help you successfully negotiate your way through the maze of administrative rules and regulations in CEB’s California Administrative Hearing Practice. And watch CEB’s program Administrative Hearing Procedures and Practice to learn the ins-and-outs of agency practice.
Other CEBblog™ posts you may find interesting:
- Where to Start on Response to an Administrative Action
- Client with a License Issue? Take 3 Steps ASAP
- For Retaliation or Whistleblower Claims, Knowing When (and How) to Exhaust Administrative Remedies Is Key
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