The importance of knowing your audience applies equally to state administrative hearings, though there are a few differences with state administrative agencies that may require some tweaking of the application of the rule. For one, a lawyer may appear before a single administrative law judge (ALJ) or a panel of commissioners who have a considerable understanding of the area of law regarding matters the agency regulates. This in-depth understanding and expertise lessens (if not obviates) the need to spend time explaining or putting on a witness to explain the general background of the matter. For example, a lawyer appearing before an ALJ of a state public utility commission will not typically need an expert to explain how a public utility generally works or the legal framework for regulating public utilities in that state, something a traditional jury or bench trial could require. By recognizing the experience and expertise of the ALJ or commission, a lawyer can bypass the unnecessary, time-consuming matters and focus on the important issues, which at times can be a difficult set of facts or a complex, nuanced area of the law.
Another difference between litigating before a state administrative agency and litigating before a court is that, many times, the agency has limited jurisdiction over a single subject matter. Knowing the jurisdictional limitations of the agency will allow junior lawyers to craft a strategy and positions that will not only prevail at the administrative level but also hold up on appeal. It does not benefit one’s client to litigate an issue and obtain relief that the administrative agency cannot provide.
One last example (noting that there could be many others) is that state administrative agencies often have specific procedural and evidentiary rules that apply to the presentation of evidence and argument. For example, certain state administrative agencies allow, if not require, pre-drafted and pre-filed testimony of witnesses. This means that a client has an opportunity to develop and present its case, and to see the other parties’ cases, entirely on paper before going to the evidentiary hearing. Unlike the presentation of testimony in typical trials before courts, the pre-filing of testimony requires a lawyer to strategically develop themes and positions that can be clearly explained and supported through the written word. Moreover, at the hearing, some agencies allow only cross-examination and redirect examination (some allow re-cross as well) of witnesses. And the rules regarding briefing, oral arguments, rehearing, and appeals should be understood and observed after the hearing so as to ensure preservation of issues and appellate rights.
Another tip that applies across all practices is to maintain a high level of civility that befits the practice of law (regardless of how opposing counsel may act). The legal profession is just that—a profession—and it will remain so only if the lawyers who practice law treat each other and those involved with the legal system with the utmost respect. But following this rule will serve lawyers particularly well when practicing in state administrative hearings.
Often lawyers have to appear before a rotation of ALJs on a variety matters or have to work with repeat players and stakeholders, each of whom will form opinions on credibility and demeanor of counsel from the first interaction. to Take an example from the utility context, state public utility commissions oftentimes have commission staff participate in dockets, providing analysis and testimony in matters like rate cases, investigations, and rulemaking proceedings. While commission staff may not always agree with a client’s position, careful consideration should be given to how to best litigate the contested issues. Needlessly going after commission staff, or any repeat stakeholder for that matter, does not foster productive, long-term relationships that could benefit a client for more than a one-off, overly aggressive litigation tactic that might seemingly advance a position in a single proceeding. But, to be sure, playing nice is not the same as rolling over—a lawyer can be aggressive, effective, and civil. A proper balance should be sought, and achieving that balance will be good for both the lawyer and the client.
Gaining experience before state administrative agencies can have numerous benefits to the development of a junior litigator’s practice. Over time, one can gain expertise in a subject matter, develop and foster long-term relationships with repeat players and stakeholders, and gain practical experience that can be applied in hearing rooms and courtrooms alike.
Keywords: energy litigation, state administrative agencies, administrative law judge, public utility commission
Mark DeMonte is a partner in Jones Day's Chicago, Illinois, office.