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Litigation Journal

Winter 2022: Tribunals

Finding a Satisfying Litigation Practice in State Administrative Tribunals

Dinita L James


  • A wealth of litigation unfolds beyond the federal and state courtrooms.
  • Each state has a multitude of administrative tribunals in which consequential, and sometimes crucial, matters are litigated.
  • There are unmet needs for legal services in administrative cases and, thus, terrific opportunities.
Finding a Satisfying Litigation Practice in State Administrative Tribunals
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After 30 years of laboring in the commercial litigation vineyard, I found myself at a personal pivot point. Family responsibilities had taken me to my rural North Carolina hometown for eight months. I got an unwitting preview of the later pandemic practice, as I remotely moved my Arizona caseload along. I turned down new matters and attended to the emotionally engrossing work I was there to do.

When I returned to Arizona, I faced afresh the question of what to do with my professional life. I had parted company with Big Law several years earlier, when I closed a national firm’s Phoenix outpost for a second time. I had no interest in returning to law firm life. The prospect of undertaking all the work necessary to ramp up my solo practice was daunting. I was still a few years away from being able to retire comfortably.

I had never before considered litigating for the government. To me, that prospect equated to being a prosecutor or public defender, and I remained firm in my lifelong conviction that I did not want anyone’s liberty interest at stake in the cases I handled. I searched the internet for government legal jobs for which my litigator’s skills might suit me and that might be a tolerable way to spend my last years of practice.

One posting from the Arizona Attorney General’s Office intrigued me. It was not an entry-level job. The salary range extended into six figures. The position involved representing state agencies in administrative hearings and other legal proceedings.

It was a litigation job. The interest was mutual. I have been an assistant attorney general for just a couple of years now. It has been an eye-opening experience. Two big takeaways capture most of my observations and insights.

Wielding Trial Skills on Topics That Matter

First, a wealth of litigation unfolds beyond the federal and state courtrooms, where, for most of my legal career, I directed all of my energies but spent just a tiny fraction of my actual time. Second, there are unmet needs for legal services in administrative cases and, thus, terrific opportunities for others, especially young lawyers starting out, to build a satisfying private litigation practice.

The opportunities are everywhere. Each state has a multitude of administrative tribunals in which consequential, and sometimes crucial, matters are litigated. In every state, there is a host of licensing and other types of regulatory and benefit actions that go to hearing before state administrative tribunals. The constitutional command for procedural due process requires that states administering federal welfare benefit programs must give “timely and adequate notice detailing the reasons for a proposed termination” and must give the benefit recipient “an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). The same due process protections, including the requirement of a prior administrative hearing, extend under the Fourteenth Amendment to state actions affecting property and liberty interests. Bd. of Regents v. Roth, 408 U.S. 564, 569–70 (1972).

Litigation skills matter. The essentials of the litigator’s craft transcend the forum. We wrestle the facts into a coherent theme. We present them to the decider with the aim to persuade. Finding the right theme for each case is just as important in an administrative benefit eligibility hearing as in a personal injury or commercial case. The agency’s lawyer cannot assert in every case simply, “We are the government, and we are right.” Instead, the challenge is to tell the story of the government doing good and doing it well.

Similarly, a witness is a witness, and working with witnesses is always both challenging and gratifying. Our professional expertise includes how to evoke from a witness’s mouth and mien the proof that supports the theme. That’s true whether the witness is a parent of a child with a disability or a government expert. Regardless of tribunal, the alchemy of a litigator is executing a direct or cross-examination that elicits from the witness the testimony that supports the case theme.

As well, the maxim “Know your judge” is just as true of an administrative law judge as it is of an Article III judge. It matters whether the hearing officer has heard many such cases or is new to the field. If the specific subject is unfamiliar to the judge, then the direct examination of the government expert may be twice as long. Hearing officers may need to be educated on the diagnostic principles and the applicable law, as well as the specific facts. On the other hand, a hearing officer who regularly hears similar cases may have little or no patience for a longer examination about the legal standards the expert applied.

Governmental organizational clients mirror all sorts of other organizational clients. Even a single agency can comprise a vast organization. Documentary evidence and witnesses may come from many different parts of it. Each witness is a human being, enmeshed in the internal politics of the organization and often not accustomed to the litigation process; each faces many other organizational and personal demands beyond the specific case. Among the litigator’s most essential skills is the ability to have clear, well-considered communications with individuals who are part of an organizational client, to obtain the evidence needed to present the best case possible. That is true no matter the forum and regardless of the type of organization that is the client.

What does all this mean? One, that I have found a litigation practice home outside the traditional courtroom. My trial skills are not withering. Indeed, in this land of administrative law, they are being honed by more frequent exercise than when I spent my days drafting and responding to discovery, clearing conflicts, and fielding clients’ complaints about my law firm’s bills. Just because I’m happy never to send a client another invoice for legal services does not mean that there are no opportunities for fee-generating work in administrative tribunals. Quite the opposite is true. So here are some things to consider.

Fee-Paying Clients in Need of Trial Lawyers

For entrepreneurial litigators looking for opportunities, they may abound in state administrative tribunals, going up against government lawyers like me. Administrative agency cases can be life-changing matters for the parties involved. Typically, the matters are of a limited, manageable size. Some are business-to-business cases dealing with issues very similar to those I handled as a commercial litigator. They are claim and contract disputes, and the opposing party is often represented by counsel or by a businessperson skilled at handling disputes. Other administrative cases determine whether individuals and families will have government benefits that can change the course of their lives. In far too many such cases with momentous consequences, the party adverse to the agency is unrepresented.

The administrative cases move quickly, generally lasting only a few months from start to finish. Firm hearing dates are set. A litigator can count on getting evidentiary hearing experience, so rare in other settings. Often there is no discovery. The parties show up with their witnesses and enough copies of exhibits for all participants to use during the hearing. While there is opportunity to prepare yourself and your own witnesses for their testimony, cross-examination is on the fly. You and your witnesses may be seeing exhibits for the first time.

For private practitioners, especially new lawyers, the matters would appear well suited for flat-fee engagements, which probably also would be much more palatable to prospective clients who are families or small businesses with some—but not unlimited—means. Short payment plans could bring steady income to keep a firm afloat between contingent fees. A few pro bono or reduced-fee matters starting out would build competence and positive reviews.

My view is telescopic, as I have detailed knowledge only of the specific administrative tribunals in which I have litigated myself. I have absorbed some level of knowledge of other Arizona administrative litigation from speaking with my colleagues about their cases and attending in-house continuing education programs. I am not informed about the administrative hearing system of other states. What I do know is that Arizona is not unusual. The same kinds of cases are litigated in the same kinds of administrative tribunals across the United States.

Here is a little about what happens in my home state: Agencies in Arizona used to conduct their own administrative hearings. Each agency typically used hearing officers who were either employees or contractors. The advantage of that system was the basis for the doctrine requiring exhaustion of administrative remedies before a court could take jurisdiction: “to allow an administrative agency to perform functions within its special competence—to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies.” Parisi v. Davidson, 405 U.S. 34, 37–38 (1972).

In 1995, Arizona created a central Office of Administrative Hearings. That was an innovation for fairness and independence from the agencies in the fact-finding process. The most recent annual report showed that in the fiscal year ending June 2020, almost 5,000 cases were filed, and nearly that many were concluded, by that office. The heaviest user by far, with more than 3,000 of those cases, was the state Medicaid agency. By case volume, the next most active areas were contracting (662 cases), health care facilities and marijuana dispensaries licensing (333 cases), and child safety (237 cases). Many agencies have only a case or two a year.

Cases move quickly in the Office of Administrative Hearings. In fiscal year 2020, only about 48 days elapsed between case filing and the evidentiary hearing date. In the annual report, the chief administrative law judge (ALJ) touted that the time to hearing had actually decreased during the pandemic.

The ALJs issue recommended decisions supported by written findings of fact and conclusions of law. While the agency director or board can reject all or part of the recommended decision, agency acceptance of recommended decisions is high—nearly 85 percent in fiscal year 2020. Limited judicial review of the final agency decision is available in Arizona’s trial-level courts.

Remnants of the agency-based procedure stayed on the books after 1995 for some state agencies that had well-established procedures and already were handling a volume of cases. Procedures in the agency-based tribunals can vary widely. Many state agency evidentiary hearings were telephonic long before the pandemic. Unlike the central Arizona administrative tribunal, agency rules may require witness and exhibit disclosures, including curricula vitae for experts, a couple of weeks before the hearing. Subpoenas are available but rarely needed.

The types of cases decided by the two Arizona administrative adjudication systems are wide-ranging and consequential. A significant caseload involves placement on registries of individuals against whom a finding has been made of child abuse or neglect or of abuse, neglect, or exploitation of a vulnerable adult. The registry listings involving children are confidential but accessible for checks by public and private employers; the registry relating to vulnerable adults is public, fully available on a government website. A federal law encourages all states to have a child abuse registry. More than half the states also have vulnerable adult registries. States that have these registries also must have the administrative tribunals where prospective listings can be challenged.

A registry listing can be a life-changing event. The listing may remain for up to 25 years. Those who work—or someday may want to work—in education, health care, law enforcement, and a host of other sectors are affected. More than 50 categories of jobs in the public and private sectors in Arizona require a registry check as a condition of employment. A listing on the registry is disqualifying.

Other administrative cases involve licenses or permits to operate a kind of business or profession. These cases turn on whether the agency decision to deny, suspend, or revoke a license was within the bounds of the agency’s statutory discretion. The issues can be criminal charges or registry listings for substantiated findings of abuse, neglect, or exploitation, or misuse of entrusted funds, or any number of rule violations. They include whether to grant, revoke, or suspend a license, and they may determine whether other sanctions, such as civil penalties, remedial probations, or cease-and-desist orders, are warranted. Other types of cases determine rates and eligibility for an array of benefits.

Real litigation goes on in administrative cases. Most weeks, these tribunals go forward with hearings. Government lawyers show up for hearings, with their exhibits and witnesses—perhaps just a couple, but sometimes many. The adverse party sometimes has counsel but often does not. Some hearings take a few hours; others, several days. There are occasional no-shows and the deflating experience of having prepared for nothing.

Hearing officers have discretion—and often use it—to require the agency to present its case first, regardless of which party has the burden of proof. The rules of evidence are flexible. Hearing officers try to prevent irrelevant matter from becoming part of the record. Hearsay is rarely excluded or challenged. There are typically opening statements and closing arguments.

Some government lawyers spent years in private law firms, working on discovery and motion practice, yet never seeing a client, much less a courtroom. Now they actually get to try cases and have client relationships with the agency staff. Similar experiences are available for private practitioners.

My caseload is as varied and as interesting as my work has been at any time in my 30 years of practice. In those administrative tribunals, I use my litigator skills just as I did in state and federal courts. Well, not exactly. Over the last two years, I have not used my skills at preparing interrogatory answers and document requests at all. For me, that’s not a bad thing.

So, here I am, winding down my litigation career in a government job. What do I see? That real litigation, both challenging and satisfying, happens in administrative tribunals. Especially for new lawyers starting out, administrative cases against state agencies present little-known opportunities to build a satisfying litigation practice and bring vital legal services to families and small businesses that need them.