The record of your hearing will consist of the documents and other materials that the administrative law judge receives as evidence, the sworn testimony of witnesses, the arguments that the parties make to the administrative law judge, and the various rulings that he or she makes. The entire hearing will be recorded, either digitally or by a court reporter. CD-ROM copies of the hearing recording are available from OAH at a cost of $10 per disk. Where the proceeding uses a court reporter, the transcript must be obtained from the court reporter, and transcript preparation fees will apply.
When a party has requested that the record of the hearing be made by a court reporter, the court reporter will take stenographic notes of everything that is said and later make a word-for-word transcript of the hearing from those notes. That kind of a written transcript can be very expensive, and the party who requests the transcript must pay the cost. (Sometimes parties agree to share the cost.) Arrangements for a court reporter must be made through OAH. Parties are not allowed to arrange for their own court reporter to be at the hearing.
Occasionally during the hearing the administrative law judge may interrupt whoever is talking in order to ask them to spell a word or a name or to ask participants not to speak at the same time. If that happens, you should not take that as criticism, because the administrative law judge is only making certain that there will be a completely accurate record of what is being said.
IMPORTANT REMINDER: Sometimes hearings can be very emotional, and OAH judges and staff will make every effort to treat each party respectfully and fairly. In return, we ask each party to be polite, to treat other parties and witnesses with respect, and to cooperate to make the hearing go as smoothly as possible.
The administrative law judge may wish to discuss some preliminary matters, such as exchanging copies of documents, with the parties before the actual hearing begins. Often those discussions are off the record - that is, they are not taped or court reported. The administrative law judge will tell the parties when they are on the record and the hearing is actually in progress.
Frequently, the administrative law judge will ask the parties to make opening statements before they begin putting on their evidence. An opening statement is simply a brief summary of the facts that you believe that the evidence will establish - a sort of "road map" for the administrative law judge.
In every administrative contested case proceeding, there are certain facts that need to be established in order for the administrative law judge to apply the law properly. If there is no evidence of those essential facts, the administrative law judge must find that they have not been proven. Burden of proof refers to the responsibility that one party or the other has to produce evidence that establishes essential facts. The party proposing that some kind of action be taken usually has the burden of proving the facts that are essential to the claim. If you are uncertain about your responsibility for producing evidence of essential facts, you should ask the administrative law judge about that responsibility.
The burden of proof also means that the party responsible for producing evidence of an essential fact must establish that fact by a preponderance of the evidence. The term "preponderance" simply means the greater weight of the evidence. The administrative law judge must be satisfied that it is more likely than not that something happened in a certain way. In deciding the greater weight of the evidence, the administrative law judge considers not only how much evidence each party has introduced but also the quality and believability of the evidence.
Under OAH rules you have the right to present "evidence, rebuttal testimony, and argument" relating to the issues that your hearing involves. You also have "the right to cross-examine witnesses." Among other things, this means that you may give your own statement under oath to the administrative law judge. And you also may call other people to testify for you.
Testimony is traditionally presented in a question-and-answer format. Generally speaking, lawyers may only ask questions and not give testimony. And witnesses give testimony but they may not ask questions. When you yourself testify, you will be under oath, and what you say will be evidence that the administrative law judge will consider in making his or her decision or recommendation. When you are asking other witnesses questions, you will not be under oath, and any statements you make during the questioning of witnesses will not be considered as evidence. The evidence will be the witnesses' answers to your questions.
When you are asking questions of a person testifying on your side of the case, it is called direct examination. When you are finished with your testimony or asking questions of your witnesses, the attorney for the agency may ask you and your other witnesses questions. That is called cross-examination. You also have the right to cross-examine the agency's witnesses.
To help you feel organized and confident, you may want to write down your questions for witnesses ahead of time. You can add to your list as you listen to the testimony at the hearing.
From time to time, there may be objections to the questions asked. An objection is a request that the administrative law judge exclude evidence that is being offered and not consider it in reaching a decision or recommendation. Objections must be based on the various legal rules that specify what kind of evidence the administrative law judge may consider. If the administrative law judge sustains the objection, that means that the witness cannot answer the question that has been asked or that a document or other exhibit will not be received as part of the hearing record. If the administrative law judge overrules the objection, that means that the witness can proceed to answer the question or that a document or other exhibit will be received as part of the hearing record.
The administrative law judge will only consider evidence that is relevant. Relevant evidence tends to prove or disprove a fact that is important to how the case will turn out. The administrative law judge will exclude or not consider evidence that is irrelevant - that is, evidence that is not important to how the case turns out. For example, evidence that someone signed an agreement on a certain day may be important to how a case will turn out, but evidence that it was raining on that day may not be important.
The administrative law judge will also exclude or not consider evidence that is privileged. Legal rules establish certain kinds of information that are considered privileged, for example, because the law considers it important to maintain the privacy of certain kinds of discussions. An example of privileged evidence is conversations a party has with his or her lawyer about the case. Evidence that is incompetent will also be excluded or given no weight by the administrative law judge. Incompetent evidence means evidence given by a witness whom the law considers to be unreliable for various reasons. An example of incompetent evidence is an opinion given by a person who does not have the personal knowledge or professional credentials to back it up, such as an engineer testifying about medical matters.
Finally, if the parties have already introduced a lot of evidence about something, the administrative law judge may stop them from introducing evidence that merely repeats evidence already in the record.
OAH rules give parties the right to present argument. Argument is another technical legal term meaning an opportunity to explain to the administrative law judge why you believe the facts and the law favor your position. Unless the administrative law judge indicates otherwise, it is inappropriate to present your argument to him or her while evidence is still being presented. After all of the evidence has been presented, the administrative law judge will give the parties the opportunity to present closing argument. This will be your opportunity to summarize for the administrative law judge the facts you believe the evidence has established, what principles of law you believe the administrative law judge should consider, and how the law should be applied to the facts to produce the outcome that you would like to see.
Sometimes, instead of listening to the parties' arguments, the administrative law judge ask the parties to present their argument in writing. If that happens, the administrative law judge will give you a deadline to submit it. Send a copy of your closing argument to the other parties.
After closing arguments, the record of the case is "closed." The parties cannot give the administrative law judge anything else to consider unless the judge specifically asks for it.