Practice Pointers for Administrative Hearings Examination of Witnesses
This article supplements “Practice Pointers for Administrative Hearings,” which appeared in the February 2008 issue of The Florida Bar Journal.1 The focus here is witness examination. No attempt is made to cover all the techniques and strategies that make up the art of witness examination. The objective of this article is to describe some of the fundamental procedures and concepts of witness examination to assist attorneys who appear in the evidentiary hearings held before the administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH).
There are a wide variety of cases that fall within DOAH’s jurisdiction, and DOAH hearings can range from those that last only a few hours, with an unrepresented petitioner, an agency attorney, and a couple of witnesses; to complex cases that last two or three weeks with a dozen lawyers and a score of expert witnesses. These practice pointers will serve an attorney appearing in any DOAH hearing, but they become more important as the hearings increase in complexity and intensity. ALJs have discretion in the management of attorneys and witnesses and can allow deviation from some of the general procedures that are discussed below.
Examination Outline
Good preparation is essential to the effective examination of witnesses. There are attorneys who can examine witnesses extemporaneously, without written aids, but their number is small. An extemporaneous examination might be perceived to be more impressive, but there is nothing wrong with referring to notes, and it is far better than forgetting a particular inquiry. Most attorneys will greatly benefit by preparing an examination outline for each witness as a guide to asking all the questions needed to establish material facts in a logical order and to refute adverse evidence. The outline can also identify the appropriate points during the examination to offer exhibits into evidence. Preparation of the outline will help the attorney focus on what must be proved or rebutted, not just in broad terms, but down to each material fact that will determine whether the contested agency action is valid or invalid.
Different styles of outline can be employed, depending on the individual attorney. Some attorneys will have an outline of complete sentences. That approach can reduce objections to the form of the questions and could be of particular help for attorneys appearing in their first hearings. An outline consisting of key words and material facts is probably most common, with greater detail for the witnesses or inquiries that are anticipated to be difficult.
Another use of the outline is to anticipate objections to testimony or exhibits with notes about the arguments that will be made. If an argument is based on the wording of a statute or rule, or on a court opinion, the outline can contain citations to authority. The attorney should be prepared to provide the ALJ and opposing counsel copies of the cited law. Using an outline in this way arms the attorney with an immediate and thoughtful response to the objections raised by opposing counsel and allows the attorney to interject objections to opposing counsel’s questions and exhibits with more persuasiveness.
Direct Examination
Direct examination should be conducted with nonleading questions and is usually most cogent when the witness discusses chronologically his or her involvement in relevant events.2 Generally, the questions should be short, and there should be a separate question for each discrete action or material fact. Compound questions and questions that invite ambiguous answers should be avoided: “Did you see or hear the collision, and did your wife as well?” Avoid open-ended questions that give no hint as to whether the answer would be relevant and that leave the witness to wander with no guidance: “Is there anything else you want to say?”
One form of question heard on direct is “Would it be fair to say that…?” This is a leading question because it contains the desired answer. It is also leading the witness to make a statement and then ask, “Is that correct?” Just because these questions call for yes or no answers does not make them nonleading. These forms should only be used during cross-examination.
Attorneys often struggle with a line of questions and encounter objections when they are trying to get a witness to find and read a statement contained in an exhibit. If the attorney’s purpose is to ask questions about an exhibit that has been admitted into evidence, there is no need to use the witness to find, identify, and read the statement. It is much more efficient to simply incorporate the exhibit statement into the question: “In the agency staff report, there is a statement that the petitioner has already received $12,500 in assistance. Do you agree with that statement?”
If an attorney wants to bring to the attention of the ALJ a statement in an exhibit, there is no need to use a witness as a middleman. Once an exhibit is admitted into evidence for the truth of the matters asserted, there is nothing improper about speaking directly to the ALJ about the exhibit: “Judge, on page 64 of petitioner’s Exhibit 14, which is already in evidence, you will see a list of the uses that are allowed in the commercial zoning district, and the list includes gasoline stations.”
For expert witnesses, it is a common practice to tender a witness as an expert in a certain field after the witness has related his or her education and professional experience, but it is not required. An objection would have to be directed to the witness’ lack of competence to answer a question. Acceptable fields of expertise are not unlimited. The farther a lawyer strays from an “ology” (e.g., biology, neurology, and hydrology) or other field for which a college degree can be earned, the greater the risk of an objection. It sometimes appears that the attempt to qualify a witness in a narrow area of specialization within a broader field is a strategy to support an argument that only one witness at the hearing has the requisite expertise. Enhanced knowledge of a narrow subject matter, however, usually goes to the weight to be given to the testimony and does not require the ALJ’s acknowledgement that the witness is an expert in the narrow area of specialization.
Agency employees and even private consultants are sometimes tendered as experts in the rules of the agency or as experts in an agency’s licensing process. These are not recognized academic fields, and they suggest that opinions will be offered that would invade the province of the ALJ to determine questions of law. Testimony about the practices of an agency, which is what lawyers are usually trying to bring forth, can almost always be offered by fact witnesses whose direct personal experiences make them familiar with the agency’s practices.
Some attorneys struggle with the requirement to lay a proper foundation before an expert witness can be asked for an opinion. An expert’s opinion may be offered without first disclosing the underlying facts or data upon which it is based,3 but the foundation for an opinion is different from the underlying facts or data. For both fact and expert witnesses, a question lacks a proper foundation (is premature) if it is not preceded by testimony that shows how the witness acquired knowledge of the answer. For example, a lawyer should not ask a fact witness about his or her observation of a particular event before the witness has explained how he or she came to be in a position to observe the event. Likewise for an expert witness, the lawyer generally cannot ask for the expert’s opinion until there has been testimony about how the expert came to be in a position to have an opinion.
The foundation for an expert opinion usually consists of a description of the studies or investigations made by the expert. For example, in a case in which an expert will be asked for an opinion about whether the geology of a construction site is suitable for a proposed multi-story building, the required foundation for the opinion would include the expert’s review of the building plans and his or her geologic analyses. The underlying facts and data that do not have to be disclosed on direct examination would include the computations the witness used to determine the weight that would be borne by the building’s support pilings and descriptions of the soil casings removed from soil borings.
Although the examining attorney is not required to have the expert witness discuss the underlying facts or data before asking the expert for an opinion, the attorney may ask for some of this information if the attorney thinks it would enhance the persuasiveness of the opinion when it is offered. Sometimes the opposing attorney will ask to voir direthe witnessto explore the underlying facts or data before the opinion is given. The general strategy for such an examination is to disclose some basis for preventing the witness from ever offering an opinion. However, because the voir dire is generally limited to a short and focused inquiry, it is relatively rare for it to reveal an error that justifies a ruling that the witness cannot offer an opinion. Cross-examination is the usual method used to undermine an expert opinion.
Proffers
If an attorney is unable to get certain testimony or an exhibit accepted into evidence because of an objection from opposing counsel that was sustained by the ALJ, and the attorney has a strong belief that the testimony or exhibit is admissible and is important, the ALJ can be asked to receive a proffer of the evidence. A proffer allows an appellate court to determine whether the evidence should have been admitted. For the proffer of testimony, the ALJ may allow the witness to answer the objectionable question or will allow the attorney to state on the record the gist of what the witness would have said. For example: “Mr. White would have testified that he sees Pearl Creek every time he drives over the bridge and he believes that Pearl Creek is biologically healthy.” The proffer of an exhibit can be made by submitting the marked exhibit to the ALJ to be placed in the record. However, the ALJ has the discretion to accept a description of the exhibit, instead. For example, the 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.
Cross-examination
Cross-examination is not limited to the factual matters testified to on direct examination, but extends to all subjects addressed in the direct examination.4 If, for example, one of the subjects discussed on direct was the witness’ motive for doing something, the witness can be cross-examined on the entire subject of possible motives, which might include an extensive discussion of factual matters not mentioned by the witness during the direct examination. In addition, matters affecting the credibility of the witness are always a proper subject for cross-examination.5
It is human nature for witnesses to be defensive on cross-examination. How can the cross-examining attorney overcome this natural defensiveness? Only with a thoughtful plan about what questions to ask and how to ask them. Meandering through topics with an adverse witness is unlikely to produce helpful answers.
It is curious that some attorneys will conduct cross-examination without using leading questions. Leading questions provide a powerful advantage over nonleading questions. For “tough” witnesses and expert witnesses, cross-examination without using leading questions will usually be ineffective and will sometimes have results worse than asking no questions at all. Rather than undermining the witness’ direct testimony, the use of nonleading questions in cross-examination often provides an opportunity for the witness to bolster the direct testimony.
It is usually ineffective to ask a question like this one: “How can you say this building would be compatible with other developments in the area when it would be the only six-story building?” The witness will accommodate you by explaining why. It is no better to ask the witness to comment on your own claims: “Don’t you agree that a six-story building would be incompatible with the existing development in the area?” The witness will usually respond with an emphatic, “No,” and explain why, bolstering the direct testimony. So how do you get a witness to agree that he or she was wrong or untruthful? You usually cannot get that kind of testimony. The unique circumstances of the case and the witness will determine whether the inquiry should be made at all. Maybe the witness expressed misgivings in a letter to a colleague or gave contrary testimony in another case involving similar circumstances. Maybe the witness based his or her opinion on a particular assumption, but you can show that the circumstances have changed. If so, then you have something to plan your cross-examination around.
A plan for cross-examination must take into account what evidence the attorney has already gotten into the record or expects to get into the record with his or her own witnesses and exhibits. For example, if you can get an adverse witness to state that his or her opinion was based on a particular assumption, and your own witness is prepared to explain why the assumption is wrong, you probably do not want to ask the adverse witness to admit that his or her opinion must be changed. Only Perry Mason could count on that happening. The adverse witness is more likely to attempt to explain away the discrepancy and maintain allegiance to his or her opinion, perhaps with a new rationale. You can throw away what you have gained when you try to get the punch line from an adverse witness instead of your own witness.
During cross-examination, lawyers commonly employ the technique of impeaching a witness by showing the witness’ testimony at the hearing is inconsistent with a prior statement made by the witness. It is apparent that some lawyers erroneously assume that by impeaching a witness in this manner, they have not only called into question the credibility of the witness, but have proven the facts contained in the prior statement. They make no further effort in the hearing to resolve the inconsistency. However, there is no legal presumption that the prior statement is the more reliable one. The truthfulness or accuracy of the prior statement is also placed in doubt. Lawyers should make certain, therefore, that there is other evidence in the record to prove the factual issue that is involved.
Many variations are seen in the method used by attorneys to impeach a witness with a prior inconsistent statement. A common error is not giving the witness an opportunity to address the prior statement before the attorney begins to read from a deposition transcript or other document. The attorney should first ask if the witness recalls making a prior statement that is inconsistent with the answer just given at the hearing. If the witness answers “Yes,” there is no need to delve into the deposition or other document which contains the prior statement.6 The witness can then attempt to explain the inconsistent statements. Only if the witness denies or cannot remember making the prior statement is it proper for the attorney to bring out the deposition or other document to discuss what it contains. Another error is to try to impeach the witness with a prior statement that is not really inconsistent, either because the question asked at the hearing is not the same question that was asked in a deposition, or because the prior statement is ambiguous.
From time to time, a lawyer will begin a question with “Would it surprise you to know that. . . ?” This form of question is often used to reveal a “fact” not in evidence, which is improper. Nothing a lawyer says enters the record as evidence unless the lawyer is offering a stipulation. This form of question is also objectionable because whether the witness is surprised is not relevant.
Somehow, it has become widely believed that a witness is “entitled” to explain an answer. Except in the case of prior inconsistent statements, there is no such right. Adding an explanation would be answering the question “Why?” which was not asked. A witness is not entitled to answer a question that was not asked. The opposing attorney can ask the “why” question when it is his or her turn to examine the witness. However, as mentioned at the beginning of this article, the ALJ has discretion in these matters and may allow a witness to immediately explain an answer.
Much time is wasted during cross-examination by asking witnesses if they remember statements they made during their direct testimony: “Do you recall testifying during your direct examination that this was the worst restaurant you had ever inspected?” This kind of preliminary question is often rewarded with an answer such as, “No. I don’t think I said that. I think I said it was the filthiest restaurant I had ever inspected.” A better approach is to trust your own memory and ask the question this way: “You said this was the worst restaurant you had ever inspected, but isn’t it true that you had only been employed as a restaurant inspector for one month?”
Objections
Objections are supposed to be directed to questions and, therefore, should be made before the witness answers. Sometimes, however, the answer follows too quickly or could not have been anticipated by the question. The objecting attorney may request that the answer be stricken. If the ALJ agrees to strike all or part of an answer, the answer is not removed from the hearing transcript. The ALJ simply disregards the answer.
Objections should be stated succinctly. For example: “Objection. Whether the witness thinks it was a good idea is not relevant.” Improper “speaking objections” can go on and on: “Your Honor, this witness does not represent the agency. It doesn’t matter whether he thinks the agency action was good, bad, or indifferent. If that’s the way it works, we might as well go around this room and take a poll to see what everybody thinks. We’re only here to determine whether. . . . ” If the ALJ does not understand an objection stated in its short form, the attorney will be asked to elaborate.
Attorneys must respond to an objection without an argument that refers to factual matters that have not yet been elicited from the witness. It is improper to disclose, in front of the witness, the testimony that the attorney hopes to get from the witness. If the examining attorney cannot effectively respond to the objection without referring to testimony that will be elicited from the witness, the attorney should inform the ALJ and request that the witness be excused from the hearing room. The opposing attorney can also make the request, or the ALJ can act without a request, to have the witness leave the hearing room until the arguments have been heard and a ruling is made on the objection.
An objection that a question is argumentative or that opposing counsel is “badgering” the witness requires deft consideration by the ALJ because this objection is sometimes raised to prevent an imminent admission or other answer that is adverse to the objecting attorney’s case. A question is not objectionable merely because the witness is uncomfortable or is struggling to answer. Being argumentative is typically characterized by a series of questions that each contain an accusation or implication that the last answer given was wrong, and is a symptom of having no plan for cross-examination. Yelling at or insulting the witness is not necessarily associated with being argumentative, but is always improper behavior that violates the decorum required of all participants in the hearing.
Sometimes it appears that objections are being made because they can be made, not because the answer could be a problem for the objecting attorney’s case. Having grounds for an objection does not mean that the objection has to be made. Attorneys should save their objections for things that matter.
Rebuttal
The petitioner will normally have an opportunity to present rebuttal evidence following the respondent’s case.7 The most commonly used method of rebuttal is to recall a witness to refute evidence that was first presented by the respondent. Although a short break may be requested before presenting rebuttal evidence, an attorney cannot expect to request that the hearing be adjourned so that a new expert can be hired, additional discovery can be conducted, or new exhibits prepared. Therefore, attorneys must be alert throughout the hearing to the desirability of presenting rebuttal evidence, and should be prepared to present rebuttal testimony and exhibits shortly after the respondent rests. Infrequently, surrebuttal is requested and may be allowed at the discretion of the ALJ.
What constitutes rebuttal is not understood by many attorneys. What is often presented as rebuttal is nothing more than a repetition of evidence that was already presented in the petitioner’s case-in-chief, as if for emphasis. Another improper use of rebuttal is to introduce new evidence to bolster the petitioner’s case, evidence that should have been presented as part of the petitioner’s case-in-chief. Proper rebuttal evidence is evidence that refutes a new proposition introduced by the respondent, a proposition not addressed in the petitioner’s case-in-chief.8
The general framework for rebuttal is as follows: The petitioner presents evidence to support claim A in his or her petition with facts one and two. The respondent then presents evidence to refute claim A by showing that facts one and two are inaccurate or untrue, and also by introducing fact three. It is improper rebuttal for the petitioner to have a witness repeat his or her firm belief in facts one and two. Those facts have already been addressed by the parties and it is now up to the ALJ to determine which evidence is more persuasive. The petitioner’s rebuttal should be aimed at refuting fact three, which was first introduced by the respondent. Fact three will then have been addressed by both parties and the ALJ can determine which evidence is more persuasive. It is improper rebuttal for the petitioner to attempt to add new support for his or her claim A by introducing new fact four, which the respondent has not had an opportunity to address.
Conclusion
Attorneys applying these practice pointers are more likely to build the evidentiary record necessary to prevail. These pointers might also help attorneys to gain more from a better instructor — experience in the courtroom.
1 The views expressed in this article are solely the views of the author and not the Division of Administrative Hearings.
2 Latitude is sometimes allowed for leading questions intended to elicit undisputed background information.
3 See Fla. Stat. §90.705(1).
4 See Fla. Stat. §90.612(2).
5 Id.
6 See Fla. Stat. §90.614(2).
7 In the cases in which the respondent has the burden of proof, it is the respondent that would be presenting rebuttal evidence.
8 See Rose v. Madden & McClure Grove Serv., 629 So. 2d 234 (Fla. 1st D.C.A. 1993).
Bram D. E. Canter received his J.D. from the University of Florida and his LL.M. degree in environmental law from George Washington University. He was director of the Water Law Center at the University of Florida College of Lawa, assistant general counsel at the former Department of Environmental Regulation, and then in private practice for 21 years before becoming an administrative law judge in May 2005.
This column is submitted on behalf of the Administrative Law Section, Cathy M. Sellers, chair, and Paul H. Amundsen, editor.
