This issue focuses on the ever-changing face of evidence. The authors highlight exciting technological advancements and offer practical tips for overcoming challenges. I have spent a substantial part of my career working in the administrative law area. Accordingly, my column is concerned with the use of evidence in administrative hearings.
If you are a litigator practicing in labor/employment, education, housing, transportation, patent, maritime, environmental, or state and local government law, you will likely spend appreciable time before administrative law judges. Familiarity with your tribunal’s evidentiary practices is necessary for effective representation of your client’s interest.
The rules of evidence are relaxed in administrative proceedings. With that said, the day of the hearing is not the time to inquire what exactly “relaxed” means.
Effective representation begins with a review of the administrative rules of evidence and evidentiary practices of the presiding tribunal. Admittedly, this is not an easy task. The U.S. Bureau of Labor Statistics reports that there are approximately 13,200 federal and state administrative law judges, adjudicators, and hearing officers. They preside over hearings in hundreds of federal and state agencies. Evidentiary rules and practices may vary by agency and among administrative law judges in their respective agencies. My point is this: Don’t be afraid to ask how evidence will be handled. And don’t assume your tribunal is covered by either the federal Administrative Procedure Act or the Model State Administrative Procedure Act—many are not.
Administrative law judges interpret and apply evidentiary rules to allow for a full and true disclosure of acts relevant to the dispute. “A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts” (Administrative Procedure Act § 556(d)). Administrative law judges “shall give all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence” (Revised Model State Administrative Procedure Act (2010) § 403).
Typically, an administrative law judge will admit all relevant evidence “including hearsay evidence, if it is of a type commonly relied on by a reasonably prudent individual in the conduct of the affairs of the individual” (id. § 404(1)).
Administrative law judges will exclude evidence upon proper objection. Additionally, an administrative law judge “may exclude evidence in the absence of an objection if the evidence is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of an evidentiary privilege recognized in the courts of this state” (id. § 404(2)). The federal Administrative Procedure Act similarly provides that an administrative law judge “shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence” (Administrative Procedure Act § 556(d)).
The Administrative Conference of the United States, an independent federal agency designed to improve the efficiency of federal administrative processes, suggests practitioners review: (1) the adjudication provisions of the federal Administrative Procedure Act (or state equivalent); (2) agency-specific statutes that set forth rules for particular types of adjudications; (3) agency-promulgated rules of procedure, administrative guidance, and explanatory materials; (4) agency precedents; and (5) any existing adjudicator-specific practice procedures (i.e., standing orders) (Public Availability of Adjudication Rules, Admin. Conf. of the U.S., Dec. 20, 2018).
Below is evidentiary guidance for appearances before an administrative law judge.
Research the applicable burdens of proof and standard of proof. Additionally, confirm the standard of review on appeal. These considerations should be at the forefront of your evidentiary strategy.
The administrative law judge’s decision will be based on the record of evidence. Most appeals are based solely on the record. Know what is and is not part of the record. “The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision . . . and, on payment of lawfully prescribed costs, shall be made available to the parties” (Administrative Procedure Act § 556(e)).
Litigants are generally responsible for developing the evidentiary record. Applicable statutes and regulations may require an agency or administrative law judge to develop all or portions of the record. The rationale is that the agency or administrative law judge may have exclusive access to pertinent documents, or judicial efficiency may be enhanced by sharing responsibility for development of the record.
Inquire whether there will be a transcript. If not, inquire whether the presence of a private court reporter is permissible or whether a private tape recording can be made.
Don’t assume discovery is not available or that discovery rules will not be strictly enforced. Discovery is available in many administrative tribunals. If discovery is available, there will be discovery rules setting forth timelines, procedures, and obligations. Discovery rules could vary from those in regular civil litigation. For this reason, it is important to read any scheduling, acknowledgment, and discovery orders carefully.
“Agency subpoenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought” (id. § 555(d)).
The operative language here is “authorized by law.” Review the subpoena statutes and rules for your tribunal. Some adjudicators have subpoena authority, while others do not. Even if the tribunal does not have subpoena power, the tribunal might be able to offer assistance in procuring relevant evidence possessed by parties in the litigation and/or by third parties. It is appropriate to ask for assistance, but avoid ex parte communications. If one of the parties has relevant information and refuses to disclose the information, the administrative law judge may draw an adverse inference.
Inquire whether there are special rules or preferences for questioning witnesses. Confirm early on who is responsible for procuring the presence of witnesses. Also, confirm whether there are witness fees or allowances for travel reimbursement. For in-person hearings, inquire early on whether witnesses may appear by telephone or video.
If agreeable to all parties, inquire whether deposition testimony may be submitted in lieu of live testimony. If the deposition will be used in lieu of testimony, the parties should prepare, conduct, and defend the deposition accordingly.
Inquire whether expert testimony is allowed. If so, review applicable rules regarding expert qualifications, scope of testimony, and disclosure requirements.
Hearsay rules are relaxed in administrative hearings, but this is not universal, so inquire ahead of time. Rules are relaxed because administrative law judges are perfectly capable of evaluating the trustworthiness of hearsay evidence.
If warranted, object and request to go on the record with any hearsay objection. Alert the judge why the particular hearsay evidence is not trustworthy. Additionally, argue that if the evidence is allowed, it should be given limited, if any, weight during consideration of the merits of the case.
Affidavits serve numerous purposes in administrative law proceedings. Affidavits can be used to support or defeat motions for summary judgment, where summary judgments are allowed. Administrative law judges may allow sworn witness affidavits, in lieu of live testimony, particularly where the content of the affidavits is not contested.
Accordingly, inquire whether the rules allow for witness affidavits, whether affidavits may be submitted in lieu of live testimony, and whether affidavits must be sworn or affirmed under penalty of perjury.
Must exhibits be disclosed prior to the hearing? If so, when? Do exhibits have to be entered in the record, or are they automatically considered part of the record? What sort of evidentiary foundation is expected? If exhibits are automatically part of the record, what are the consequences or advantages of not receiving testimony on one or more exhibits?
If an exhibit is excluded and given no weight, will the administrative law judge nonetheless allow the exhibit to be included in the record, so a reviewing court will know the content of the questioned exhibit?
Whether preparing for a civil trial or an administrative hearing, your evidentiary strategy is paramount. The strength of your evidentiary strategy is no better than your understanding of the rules and practices of the presiding tribunal.
