by Bram D. E. Canter
This article supplements “Practice Pointers for Administrative Hearings — Examination of Witnesses,” which appeared in the July 2010 issue of The Florida Bar Journal.1 The focus now turns to exhibits, with the objective of describing fundamental procedures and concepts regarding the use of exhibits in the evidentiary hearings held before administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH).2
The effective use of exhibits at the final hearing begins with thinking ahead about each and every material fact that must be proven. In preparing for a hearing, a lawyer’s thoughts should keep returning to the questions, “What facts do I have to prove?” and “How can I prove these facts?” Delay in identifying the exhibits that will be necessary or helpful to prove your case can reduce your chances of prevailing because exhibit disclosure deadlines, prehearing stipulations, and other constraints can make late efforts to obtain or prepare an exhibit ineffective.
Thinking about exhibits is not a task for the attorney alone. There will often be useful exhibits only a witness, especially an expert witness, is aware of or would think to prepare. Therefore, the exhibit list for a hearing should be generated in part through discussions with the prospective witnesses about exhibits. The attorney must independently assess the merits of each exhibit.
It is always helpful to prepare a trial notebook or outline for the final hearing. The notebook or outline should include notes about the appropriate points during your witness examination to offer exhibits into evidence. It can also include notes about the arguments you will make to counter anticipated objections and the objections you will make to the exhibits of other parties.
The Order of Prehearing Instructions used in many DOAH cases requires that all exhibits be 8.5 by 11 inches in size or foldable to that size. Larger versions of an exhibit may be displayed and referred to at the hearing, but the exhibit admitted into the record should be 8½ by 11 inches, if possible. Multi-paged documents must have page numbers and be stapled or otherwise bound. When only a few pages of a large document will be used, an excerpt of the document is preferable as the exhibit.
Premarking exhibits is also commonly required. If a prehearing stipulation has been filed, the exhibit numbers used at the hearing should correspond to the numbers used in the pre-hearing stipulation. The exhibits will be admitted as premarked, without regard to whether some exhibit numbers are skipped in the record.
Parties may offer joint exhibits. The term “joint” in this context does not necessarily mean, as it does with joint motions, all the named parties are of the same mind. Joint exhibits are often offered by opposing parties who use the term to mean only that there are no objections to the admissibility of the exhibits. The parties may still disagree with statements made in the joint exhibits and offer evidence to refute the statements.
Some attorneys will make the last item on their exhibit lists “all the exhibits of the other parties,” or something similar. You invite a ruling that you have waived your objections to the admissibility of your opponents’ exhibits when you make their exhibits your own in this way.
Attorneys sometimes find it difficult to be satisfied with stipulated facts, especially stipulated facts regarding standing. Yet, that is the purpose and benefit of stipulations — to eliminate the need for proof, including proof through exhibits. Stipulated facts in a prehearing stipulation are treated the same as proven facts. Any doubt about the meaning or effect of a stipulation can be resolved by having an explanation placed on the record.
It is a curious, but common, practice of attorneys to present witness testimony and offer an exhibit authored by the witness that contains the same information. The exhibit is frequently unnecessary. For example, if your witness explains the three reasons she objects to the agency action, it is unnecessary to also offer into evidence a letter she wrote explaining the three reasons — unless you have to prove that she wrote the letter. The letter is cumulative to prove her reasons for objecting.
Demonstrative evidence can be a photograph, diagram, outline, hand drawing, or other visual aide used during a hearing to help explain or illustrate testimony, but not intended to be admitted into the record. Occasionally, however, the demonstrative evidence is referred to so often by the parties the record might be unclear without it, and a party may request — or the ALJ may direct — that the demonstrative evidence be marked as an exhibit and admitted into the record.
It is surprising how often attorneys set out to prove their cases with hearsay evidence. If the hearsay does not fall within a hearsay exception, it can only be used to supplement or explain other evidence.3 Supplementing or explaining other evidence does not mean proving material facts with the hearsay alone.
Proving facts with exhibits raises the issue of hearsay because almost every offered exhibit was created before the commencement of the hearing and, therefore, contains out-of-court statements. Many lawyers do not think of the out-of-court statements of witnesses as hearsay, but hearsay is defined in the Florida Evidence Code to include any statement “other than one made by the declarant while testifying at the trial or hearing” when offered to prove the truth of the facts asserted.4 Therefore, if a witness’ letter is offered only to prove that the communication occurred, it is not hearsay, but if the letter is offered to prove the facts asserted in the letter, it would have to qualify for a hearsay exception. Testimony from the witness will probably be needed to prove the facts asserted in the letter. Diagrams, charts, and graphs prepared for the hearing by expert witnesses usually supplement or explain their testimony and are routinely admitted as exhibits in administrative hearings when the expert is available for cross-examination.
An expert witness can express an opinion based in part on facts or data not admitted at the hearing when the facts or data are of the type reasonably relied upon by experts to support the kind of opinion expressed.5 There is no hearsay exception for the facts or data relied on by an expert witness. If a document is not otherwise admissible, it is not made admissible just because it contains facts or data that an expert witness relied on in forming an opinion.6
For any exhibit that you plan to offer under a hearsay exception, be prepared to prove the elements necessary to qualify for the hearsay exception. For example, four elements must be proven to qualify for the business records exception.7 Only one element must be proven for the public records exception, but it eludes many attorneys. The public records exception applies only to a record that sets forth the activities of an agency or matters observed and reported by an agency pursuant to a duty imposed by law.8 When thinking about what facts you must prove, do not omit the facts that prove the hearsay exceptions for your exhibits, and put them in your outline.
The general mechanics for offering an exhibit through a witness are simple and logical. The process starts by marking the document with an exhibit number. If the document has not been premarked with an exhibit number, it must be marked as a first step. The exhibit then should be authenticated, which simply means evidence is presented to establish that the exhibit is what it purports to be.9
Q: Mr. Lee, I hand you a document that has been marked petitioner’s exhibit one. Do you recognize it?
A: Yes, I do.
Q: What is it?
A: This is a letter I received from Mr. Grant in December 2010, regarding his proposed boat dock.
A common error by the examining attorney is immediately to launch into a dialogue with the witness about the contents of the exhibit, even when an objection to the exhibit has been made in the prehearing stipulation. If there is a pending objection, the next step after the authentication of the exhibit is to offer it into evidence so that the objection can be made, the argument of the parties can be considered, and the ALJ can make a ruling on the exhibit’s admissibility. If the exhibit has not been offered into evidence, the opposing attorney should object if the witness is asked a question about the contents of the exhibit. Otherwise, time and effort could be wasted discussing inadmissible matters, and the discussion would be recorded in the transcript of the hearing even if a later objection to the exhibit is sustained and a motion to strike the testimony is granted.
Our example continues with the exhibit offered into evidence after its authentication:
We offer petitioner’s exhibit one into evidence.
Objection. The letter is hearsay.
Judge, the letter is from the respondent and contains statements about the proposed dock. Therefore, the letter qualifies under the hearsay exception for admissions.10
Overruled. Petitioner’s exhibit one is admitted.
Taking Advantage of Admitted Exhibits
ALJs generally encourage the admission of as many joint exhibits as possible at the beginning of the hearing to minimize the amount of time spent laying a foundation for each exhibit. Attorneys should also consider offering their other exhibits as early as possible in their cases-in-chief. The advantage of admitting exhibits early is after they are admitted into the record the attorneys can examine witnesses with greater ease and effectiveness because the statements in the exhibits can be incorporated into the questions for the witnesses. Compare the following examples.
Example 1 — Taking Advantage of Admitted Exhibits:
Q: Mr. Lee, the record shows that you wrote a letter to the respondent in November 2010 objecting to his proposed boat dock because it was too close to your own dock, and he wrote back in December to say he would move his dock farther away to, quote, “give you room to maneuver.” Did the respondent modify his plans as he said he would so that the permitted dock is now farther away from your dock?
A: No, he didn’t move it one inch.
Example 2 — Not Taking Advantage of Admitted Exhibits:
Q: Mr. Lee, did you write a letter to Mr. Grant about his proposed boat dock?
A: Well, it was either me or my wife.
Q: I’m handing you a document marked petitioner’s exhibit four. Is this the letter you were referring to?
A: Yes, and it looks like I wrote it.
Q: Did you object to the proposed dock?
A: Yeah. I told him we had a problem with it.
Q: What was the problem…?
These examples also show how much more efficient it can be to incorporate statements from admitted exhibits into the questions. Over the course of an entire hearing, the time saved can be substantial.
If an attorney wants to bring to the attention of the ALJ a statement in an exhibit, a witness does not have to be used as a middleman. Once an exhibit is admitted into evidence, the attorney can speak directly to the ALJ about the exhibit: “Judge, petitioner’s exhibit four shows that Mr. Lee objected to the proposed dock at least as early as November 2010, not in March 2011 as claimed by the respondent.”
Taking advantage of admitted exhibits in the manner suggested above can be part of an overall strategy to take greater control of the witnesses, the exhibits, and the case. An attorney can devise an exquisite plan for proving his or her case at the final hearing, but the implementation of the plan is not wholly within the attorney’s control. Theoretically, an attorney would have maximum control of the case if the attorney could write the complete factual record. Although that is not permitted under F.S. Ch. 120, the attorney can seek to control or “write” as much of the record as possible. Look again at example one, and note how the attorney is writing the record and not leaving the writing to the witness. The more the attorney can do this, the more the attorney can control his or her plan for the hearing.
It is risky to hand a witness an exhibit and relinquish control of the testimony about the exhibit to the witness, allowing the witness to decide what to mention and in what order, what to emphasize, and how much explaining to do. Where there is less control, there is greater opportunity for undesirable events, including misstatements, omissions, and lack of clarity in the record. On the other hand, most attorneys have had the pleasure of working with some witnesses who shine on the witness stand. Giving that sort of witness more freedom with his or her testimony, including testimony about exhibits, is reasonable because the witness has proven to be a good “writer” of the record. That is not inconsistent with an overall strategy to exercise as much control of the record as possible.
In the following example, the attorney takes control of the discussion of exhibits to ensure that the record is as clear as possible with respect to the material fact that is involved.
Q: Mr. Stevens, does respondent’s exhibit three support your opinion that it is impossible for the temperature in the boiler to reach 400 degrees centigrade?
A: Yes, because this graph shows that the peak temperature that can be reached, assuming maximum pressure and maximum fuel combustion, is 250 degrees.
Q: On the horizontal axis of the graph is the abbreviation “NG.” What does that stand for?
A: That stands for “natural gas,” which is the type of fuel we’re going to use.
Q: Did you rely solely on the boiler manufacturer’s specifications to prepare this graph?
A: No. This graph shows the results of our own tests on the same kind of boiler being used at our sister plant in Memphis.
Q: Will the proposed boiler be used in the same way as the boiler in Memphis?
Q: The petitioner claims in his petition that a boiler like this one is being used at a facility in Atlanta and it regularly operates at temperatures as high as 400 degrees centigrade. I’m handing you petitioner’s exhibit 12, which includes a schematic drawing of the Atlanta facility. Have you reviewed this exhibit?
Q: Did you find anything different about the equipment being used at the Atlanta facility that relates to the maximum temperature of the boiler?
A: Yes. The schematic shows that the boiler used in Atlanta is connected to a pressure booster.
Q: Is the respondent proposing to use a pressure booster?
Q: Can this boiler ever reach a temperature of 400 degrees if it is operated without a pressure booster?
What if your exhibit is not admitted? What is your backup plan? Sometimes an attorney’s intense and emotional argument to counter an objection to an exhibit reflects a desperation caused by having no other means to prove a fact. As explained below, an attorney cannot expect to overcome the failure to get an exhibit admitted by putting on related evidence during the rebuttal phase of the final hearing. In planning for a hearing, an attorney should consider whether there is an alternative way to prove the facts contained in an exhibit when the admissibility of the exhibit is in doubt. The alternative will often be to call an appropriate witness.
If an attorney is unable to get an exhibit accepted into evidence because an objection was sustained by the ALJ, and the attorney has a strong belief that the exhibit is admissible and important, a proffer of the exhibit can be made. A proffer can assist an appellate court in determining whether the exhibit should have been admitted and how its admission might have affected the outcome of the case. The proffer is made by simply asking the ALJ to accept the exhibit as a proffer. If accepted, the exhibit will be marked and placed in the record, but it will not be evidence that the ALJ can consider when making findings of fact and conclusions of law. The ALJ has the discretion, however, to accept a description of the exhibit instead. For example, an attorney may be allowed to state on the record that he or she wanted to offer into evidence 10 newspaper articles about an event to show that the petitioner must have been aware of the event.
Although a short break may be requested before presenting rebuttal evidence, an attorney cannot expect to ask for the hearing to be adjourned so that new exhibits can be prepared. Therefore, attorneys must be alert throughout the hearing to the desirability of presenting rebuttal evidence and should be prepared to present rebuttal exhibits shortly after the respondent rests.
Because rebuttal follows the resting of the parties’ cases, it is improper to use rebuttal testimony or rebuttal exhibits to fill a gap in a party’s case-in-chief or to bolster the case. A proper rebuttal exhibit will contain evidence that denies or explains new facts were introduced by the opposing party.11 For example, a respondent presents a prima facie case showing entitlement to a permit, including a biologist’s site evaluation stating that no endangered species use the project site.12 The petitioner calls a witness who testifies that the site is used as a rookery for endangered wood storks. The respondent can offer a rebuttal exhibit showing that the rookery is located on adjacent property and does not extend onto the project site.
Think about exhibits early and often in your preparation for the final hearing. Talk to your witnesses about exhibits. Facilitate your use of exhibits with notations in a trial notebook or outline. Take control of the testimony about your exhibits. Have a backup plan for proving the facts associated with any exhibit that might not be admitted.
1 The views expressed in this article are solely the views of the author and not the Division of Administrative Hearings.
2 Administrative hearings and civil trials have much in common, and most of these practice pointers apply to both.
3 See Fla. Stat. §120.57(1)(c).
4 See Fla. Stat. §90.801(1)(c). There are very few types of out-of-court statements offered to prove the truth of the facts asserted that are not hearsay. One example is a prior inconsistent statement made under oath.
5 See Fla. Stat. §90.704. The expert’s opinion may not be based exclusively on inadmissible facts or data. See, e.g., Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 432 (Fla. 2d D.C.A. 1989). The examining attorney must be prepared to lay a foundation for the witness’ reasonable reliance on facts or data that have not been admitted. See Fla. Stat. §90.705(2).
6 However, some discussion of inadmissible data may be allowed. See Kloster Cruise, Ltd. v. Rentz, 733 So. 2d 1102 (Fla. 3d D.C.A. 1999) (finding no abuse of discretion in allowing the expert witness to present inadmissible data underlying his opinion “because the underlying data was the beginning point for analysis, but some further analysis was required by the expert”).
7 The business record must be of acts, events, conditions, opinion, or diagnosis made 1) at or near the time, 2) by or from information transmitted by, a person with knowledge, 3) kept in the course of a regularly conducted business activity, and 4) it was the regular practice of the business activity to make the record. See Fla. Stat. §90.803(6).
8 See Fla. Stat. §90.803(8).
9 See Fla. Stat. §90.901.
10 See Fla. Stat. §90.803(18).
11 See Rose v. Madden & McClure Grove Serv., 629 So. 2d 234 (Fla. 1st D.C.A. 1993).
12 In proceedings involving certain environmental permitting statutes, the order of presentation at the final hearing is for the permit applicant to present a prima facie case demonstrating entitlement to the permit by entering into evidence the permit application and related materials. The petitioner then has the burden of going forward to prove the case in opposition to the permit. See Fla. Stat. §120.569(2)(p).
Bram D. E. Canter received his J.D. from the University of Florida and his LL.M. in environmental law from George Washington University. He was director of the Water Law Center at the University of Florida College of Law, assistant general counsel at the former Department of Environmental Regulation, then in private practice for 21 years before becoming an administrative law judge in 2005.
This column is submitted on behalf of the Administrative Law Section, Foster Scott Boyd, chair, and Paul Amundsen, editor.