February 26, 2016 Articles

Key Tips for Junior Lawyers Practicing Before State Administrative Agencies

Differences and similarities between litigating before a state administrative agency and litigating before a court.

By Mark DeMonte – February 26, 2016

Matters before state administrative agencies provide junior litigators with the opportunity to gain substantive knowledge of a specific area of law, but they can also provide great opportunities for getting practical experience as well. Whether through a pro bono representation or through representation of a paying client, a junior lawyer can often take the lead on a particular issue or area of the law, work up a case, and present it to a fact finder, much like at a trial litigated in state or federal courts. And while there are some rules that apply no matter what venue lawyers may find themselves in, junior lawyers should be mindful that some specific issues can arise in state administrative matters that may require some adjustments from the traditional application of the rule.

First, many lawyers have spoken or heard the advice: “know your audience.” Identifying and analyzing the characteristics of one’s anticipated audience frames both the substance and delivery of any presentation. Presenting evidence and argument to a fact finder is no different. For example, cases tried to a jury require adjustments to tone, order of evidence, and themes that may not be necessary when trying a case to a judge. The same holds true when trying a case before a new judge rather than a more experienced judge. Connecting with the fact finder and creating a conducive environment to understand (and agree with) your version of the case can be critical to a successful outcome. That may be what drives many lawyers’ decisions to spend time and resources on jury consultants or researching a judge’s demeanor and prior decisions.

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.

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