Thursday, December 4, 2014

How We Prepare For Your Administrative Hearing & 3 Basic Tips We Give Our Clients to Help Prepare for Hearings

Administrative and Board hearings are similar to trials, but some differences exist in procedure and practice. There is no jury and the administrative law judges (ALJ) must follow statutes, regulations, administrative procedure act (APA), constitutional requirements of due process and consider guidelines from the regulating agency. 

We encourage our clients to understand the administrative rules and procedures that will govern the conduct of the hearing since this is not simply making your "case" to the judge as if it were a jury that decides "guilty" or "not guilty." There are very different standards.

This is one of the reasons that individuals and businesses that represent themselves in pro per have a very difficult time and usually do not do well. Although the paperwork sent out by the agencies indicates that they can represent themselves it is almost universally a bad idea. At a minimum, if a client has financial restrictions and limitations, they should try to work out a payment plan with an attorney or at least pay for a consultation and find out what they need to do to prepare for their case at hearing or settlement.  

What else do you need to know if you are preparing for a State of California administrative hearing? Here are 3 things you need to know. There are many more levels but here are three basic things to know and consider:

First, you must know that if the ALJ reaches a decision that the board or bureau will not approve, that bureau or board does not have to adopt it. It is therefore important as an advocate to suggest a result and create a strong record that the board or bureau at issue will adopt. Otherwise, our client will have to start over again. 

Thus, if you have a recent felony conviction for fraud, the likelihood of going to a hearing and persuading an ALJ to dismiss the Accusation and impose no discipline would be difficult to achieve. But if it were achieved, it would be very unlikely that the board or bureau will adopt it unless the circumstances are so unusual and the record is well-established. Then you have to go through another hearing. In other words, trying a "Hail Mary" pass.

Second, we are creating a "record" with admissible evidence including administrative hearsay. We want a strong record for a couple of reasons: to have the ALJ adopt the findings we want and to have a record that will allow the board or bureau to adopt it. We push our clients to obtain evidence and expert testimony that they sometimes do not think is important but they do not understand that we want something other than their own testimony just in case the ALJ says our client is "not credible." Preparation is key. In most cases, witness testimony, without more, is not sufficient to prove your case. Exhibits, including documents and other forms of evidence such as expert witness reports, are often necessary.

This is where we seek to be creative when there are challenging facts or why we will seek to introduce a great deal of evidence in the record that can support our suggested level of discipline or findings of no discipline. This is also important for creating a record on appeal.  

Third, we help our clients know the ALJ. We gather information from other advocates about the particular practices of the hearing officer or administrative law judge if we have not previously appeared before him or her. We want to know the following:

How active a role does the ALJ or hearing officer play in taking testimony from witnesses? Some will ask questions or clean up weaknesses in the government's case. Some let you try your case.

How does the ALJ handle exhibits and administrative hearsay introduced by declaration? 

Does the ALJ or hearing officer apply any evidentiary rules? 

Is the hearing officer knowledgeable about the substantive law? 

What is the hearing officer’s attitude toward clients, witnesses, and advocates? 

Should you be prepared for anything unusual about the hearing officer’s conduct during hearings?

Make sure you practice good "Hearing Etiquette." Always arrive at the hearing on time or early. Be polite to the hearing officer and all of the parties. Comport yourself in a professional manner. No eye rolling, head shaking or displays of emotion when the judge or hearing officer is speaking or a witness is testifying. You want to show your professionalism and never compromise your credibility or that of your client by lowering your standards of professionalism or courtesy. And when we are acting professionally, understand that it will help you in the long run. Banging on the table or shouting is just for TV lawyers - an ALJ will stop listening. 

We make good records with witnesses, exhibits and persuasive testimony. We let the facts speak for themselves and that also creates good records on appeal.

For your case, you can call or schedule a complimentary 15 minute consultation. Call 213-233-2260 or email

Posted by Tracy Green, Esq. 


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