Practice Pointers for Administrative Hearings
There are recurring issues and errors observed by the administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH) in the trial-like hearings conducted pursuant to F.S. §120.57(1). The purpose of this article is to offer some pointers for lawyers who now appear or expect to appear in administrative hearings, so that they might avoid or deal more effectively with these common problems.1
Discovery Practice
The proceedings at DOAH move more rapidly than civil cases in the circuit courts. Most hearings are scheduled 60 to 90 days after a petition for hearing is filed with an agency. Therefore, it is not just advantageous to a lawyer to begin discovery immediately, as it would be in a civil case; it is essential.
Motion Practice
Motions are frequently filed at DOAH without the required statement as to whether the motion is opposed by any party.2 This is not optional and a motion can be denied for omitting the statement. Most motions are ruled on by the ALJ without oral argument. When the moving party represents that the motion is not opposed, the ALJ knows there is no need to wait for responses from the other parties before ruling. Stating in the motion that a call was made to a party’s lawyer, but the lawyer was unavailable, defeats the purpose of the rule. If the moving lawyer does not know whether the motion is opposed, the motion should include an explanation of the exceptional circumstances that justify the filing of the motion without the required statement.
There was once a time when joint or unopposed motions to continue the scheduled hearing were summarily granted at DOAH. Now, it is not uncommon for joint or unopposed motions for continuance to be denied if good cause for the continuance is not stated. A motion for continuance filed less than five days before the hearing requires an explanation of emergency circumstances.3 If the parties move for a lengthy continuance because they are engaged in settlement negotiations, the ALJ may close DOAH’s case, without prejudice to refile for a hearing if the parties are unable to reach a settlement.
When the ALJ begins a hearing by asking whether there are preliminary matters to discuss before the evidence is presented, one or more of the lawyers will often raise an issue that should have been resolved earlier by motion. One of the common issues raised as a “preliminary matter” at the beginning of the final hearing is a party’s claim to have been prejudiced by another party’s failure to produce documents or exchange exhibits on time. If there is genuine prejudice to a party’s ability to prepare for the hearing, the ALJ will have to decide whether to continue the hearing or refuse to admit the untimely-produced documents into the record as exhibits. Of course, continuing the hearing can cause substantial inconveniences for all the participants. Excluding evidence, however, is also an unsatisfactory remedy when the documents have particular importance to the subject matter of the proceeding under the applicable statutes. The interests of justice can be thwarted by the exclusion of certain evidence.4
Another example of an overripe motion is a motion in limine or similar motion raised at the hearing to prevent another party from presenting evidence on a particular subject. If the request has merit, waiting to raise the issue at the hearing means that the parties have prepared to litigate an issue that might not be litigated — a waste of time, effort, and money.
Motions filed before the hearing are a far more efficient way to deal with these problems. A motion for prehearing conference can be a means to discuss with the ALJ numerous procedural and substantive matters that might otherwise become problems at the final hearing. Even a motion sought to be heard a few days before the hearing is more convenient and effective than a motion raised at the hearing.
Finally, a pointer about how a motion is served. The rules governing DOAH proceedings provide that a response to a motion may be filed within seven days.5 The rules allow five more days for the response if the motion was served by mail.6 The reader might be surprised at how often motions are filed under circumstances where time is a factor, as in the case of motions filed a few days before the final hearing and motions that request expedited action of some kind, and yet the motion is mailed rather than hand-delivered, e-mailed, or faxed. If a lawyer wants something to happen in a hurry, the motion should not be served by mail.7
Pro Se Litigants
One of the purposes of Ch. 120 is to make the formal action of an agency reviewable in proceedings in which a citizen can appear on his or her own behalf. Pro se litigants present unique challenges for the lawyers in the case. They also present challenges for the ALJ, who may assist a pro se litigant with procedural aspects of the litigation, but must refrain from assisting the pro se litigant to prove his or her case. Through the course of the proceedings, the lawyers should strive to show patience and courtesy while protecting the interests of their clients. The best lawyers save their objections for things that matter. That practice is especially helpful in cases with pro se litigants.
Because pro se litigants are often unfamiliar with the rules governing discovery and do not generally have a copy of the Florida Rules of Civil Procedure (FRCP), they will frequently fail to respond to discovery requests in a timely manner. A particular problem for pro se litigants are requests for admissions because of the provision in FRCP Rule 1.370(a) that matters not timely denied are deemed admitted. It is recommended that lawyers include an introductory statement that spells out the effect of an untimely denial in any request for admissions served on a pro se litigant. When such notice is not provided, the ALJ may allow the pro se litigant to show cause why a late response should be permitted.
Presentation of Evidence
• De Novo Proceedings — The proceedings at DOAH are de novo proceedings rather than appellate-type reviews of prior agency actions or determinations.8 In fact, the only “record” that exists when a DOAH case file is first opened consists of the writing that constitutes the agency action that gave rise to the dispute, a petition for hearing, and an agency letter of referral when the petition for hearing was filed with the agency. No other documents that might have been sent to DOAH, such as transcripts of hearings before local governments or state boards and any exhibits or other evidence presented in a prior hearing are a part of DOAH’s evidentiary record at that time. If a party believes some or all of the evidence that was presented in a prior proceeding is relevant in the DOAH proceeding, the party must attempt to introduce it into the DOAH record. Evidence can also be presented to the ALJ that was never presented before.
Lawyers representing parties who are challenging agency actions frequently attempt to present evidence to show how a prior agency proceeding, such as a hearing before a review board, was flawed. Lawyers representing agencies that routinely conduct investigations of suspected license violations by persons or corporations sometimes want to introduce evidence that shows the quality and thoroughness of the agency’s investigation. However, because DOAH proceedings are de novo, this kind of evidence is usually irrelevant.
It is usually irrelevant whether a prior review board decision was made with exemplary effort and with the benefit of all available information, or was somewhat cavalier. Likewise, it is usually irrelevant whether an agency’s investigation was conducted over several months or consisted of a couple of interviews. There are exceptions for clear procedural errors in the prior agency proceedings, such as the failure of a licensing agency to first make a probable cause determination that is required by statute. In those cases, a motion to dismiss or to relinquish jurisdiction back to the agency might be appropriate because the DOAH proceeding could be premature.9
It is the role of the ALJ to determine de novo what the final agency action should be. After reviewing all of the evidence presented at the DOAH hearing, the ALJ might disagree with a thoughtful decision made by the agency or might determine that a poorly made decision happened to be right.
• Hearsay — When an objection is made to the introduction of hearsay evidence, a common response is, “Hearsay is admissible in Section 120.57 hearings.” It is true that hearsay evidence can be admitted in administrative hearings, but it has limited usefulness for the offering party. Section 120.57(1)(c) provides: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” In other words, if an out-of-court statement does not fall within one of the hearsay exceptions, it can only supplement or explain nonhearsay evidence or evidence that falls within a hearsay exception.
Some ALJs will allow the admission of this kind of hearsay evidence with a reminder to the parties that it will not be sufficient, by itself, to support a finding of fact. Other ALJs will refuse to admit the hearsay evidence until the nonhearsay evidence it purports to supplement or explain is first presented and admitted into evidence.10 The bottom line: All the essential elements of a party’s case must be proven with nonhearsay evidence or evidence that falls within the statutory exceptions to the general rule excluding hearsay.11
• Hearsay Exceptions — One of the most common misunderstandings related to hearsay evidence is the belief that the public records exception set forth in F.S. §90.803(8) applies to the same universe of documents that the public has a right to see under the “public records law,” F.S. Ch. 119. However, the definition of public records for the hearsay exception in the evidence code is much narrower than the definition of public records in Ch. 119. Many of the documents in agency files are not public records encompassed by the public records exception to the hearsay rule. This hearsay exception applies only to documents “setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there is a duty to report.” It does not apply to the numerous documents and reports that agencies routinely generate, but which are not specifically required by law, or to documents and data submitted to the agency by consultants and other persons outside the agency.
An agency is also a business for the purposes of the business records exception to the hearsay rule in F.S. §90.803(6) and, because this exception is broader than the public records exception, it is generally more useful for the introduction of documents in an agency’s files. However, the business records exception also has its limits. It is not sufficient to merely show that the record was found in the files of the business or that it is the regular practice of the business to put such documents into its files. The regular practice of the business must be to make the record or to collect the data. The statements contained in business records must also be within the personal knowledge of the employees who made the records.
Lawyers frequently confuse the hearsay exception for statements against interest with the exception for admissions by adverse parties. The exception for a statement against interest involves unavailable nonparties and is based on the premise that such a statement is generally reliable.12 The exception for an admission applies to adverse parties in the case and is based on the presence of the party to hear and attempt to explain or refute the evidence if desired.13 Although the word “admission” is often associated with a statement that is adverse to the declarant, the hearsay exception for admissions is not limited to that meaning and applies to any statement by the adverse party (and, sometimes, to a statement by the party’s employee or agent) that is relevant to a material fact in the case.
The last practice pointer on the subject of hearsay exceptions is to remember that a document’s qualification under one of the hearsay exceptions does not mean that every statement contained in the document is admissible. For example, a business record might include a reference by the employee who made the record to a statement made by, or to information received from, a nonemployee. The business record would probably be admissible for the information within the employee’s personal knowledge, but the statement or information from the nonemployee might not be admissible. This “hearsay within hearsay” must independently qualify for admission under a hearsay exception.14
• Expert Witnesses — It is a common practice of lawyers to tender a witness as an expert in a certain field after the witness has related her education and professional experience. Although this practice is widespread, there is no rule that requires it. Therefore, a lawyer’s objection that a witness was not tendered as an expert is not a valid objection and would be overruled. The objection would have to be directed to the witness’ lack of competence to answer a question. It is not the intent here to discourage the practice of requesting that the ALJ accept a witness as an expert in an identified field or fields, because this procedure is usually a more efficient way to hear and resolve disputes about the competence of the witness or the scope of his or her expertise than the alternative of dealing with serial objections raised during the direct examination.15
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. The identification of a witness’ knowledge of a narrow area of specialization within a recognized field usually goes to the weight to be given to the testimony that involves the specialization and does not require a debate about whether the witness is an expert in the narrow area of specialization.
Most ALJs will not accept agency employees as experts in the rules of the agency nor private consultants as experts in an agency’s licensing process, because 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 employment positions in an agency or work experience make them familiar with the agency’s practices.
Another pointer about expert witnesses involves the issue of the foundation that must be laid before an expert witness can be asked for opinion testimony. F.S. §90.705(1) states that an expert’s opinion may be offered without first disclosing the underlying facts or data upon which it is based. If the underlying facts or data are not brought out during direct examination, it is up to the opposing lawyers to decide whether they wish to explore the underlying facts or data, and whether to do so through voir direexamination before the expert opinion is given, or through cross-examination after the opinion is given. Some lawyers confuse the concept of underlying facts or data with the foundation necessary for opinion testimony.
For both fact and expert witnesses, a question lacks a proper foundation (is premature) and is objectionable if it is not preceded by testimony that shows how the witness gained knowledge of the answer. For example, a lawyer should not ask his or her fact witness about the color of a particular car before the witness has explained how he or she came to be in a position to see the car. 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 distinction between the foundation that must be laid before an expert is asked for an opinion and the underlying facts or data that do not have to be disclosed can be illustrated in a hypothetical case involving the suitability of the soils on a construction site for the erection of a proposed building. Required foundation to offer an opinion: How the expert acquired knowledge of the relevant facts about the proposed building and how the expert acquired knowledge about the soils on the property. Underlying facts and data that do not have to be disclosed on direct examination: Computations used to determine the weight that would be borne by the building’s individual support pilings and detailed descriptions of the soil casings removed from each soil boring.
• Cross-examination — An objection that a question asked during cross-examination “goes beyond direct” must frequently be overruled, because cross-examination is not limited to the factual matters testified to on direct examination, as many lawyers mistakenly believe, but to the entire subject matter of the direct examination.16 Therefore, if a witness testifies that he struck the neighbor’s dog with a golf club in self defense, cross-examination is not limited to exploring whether the dog had attacked the witness or otherwise provoked his action. The opposing lawyer can cross-examine the witness on the entire subject of the witness’ possible motivation for striking the dog, which might have been to take revenge for the neighbor’s flirtations with the witness’ wife or other circumstances that the witness did not mention during direct examination.
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 many 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 support the factual issue that is involved.
• Focus — This offering of practice pointers concludes with the recommendation to lawyers to focus their cases. A focused case has a better chance to prevail. The dangers of an unfocused case include diverting the lawyer’s trial preparation from the central factual issues that must be proven and distracting the ALJ’s attention from the central issues. The prehearing stipulation which must be filed in most DOAH cases provides an excellent opportunity for the parties to focus their cases. When approached seriously for that purpose, the prehearing stipulation can greatly assist the lawyers in their final preparations for the hearing and during the course of the hearing. It is the main document in the case file that the ALJ will review before the hearing commences.
In preparing this article, the author was mindful of the observation of a Denver trial judge that a good lawyer is not always the one that makes the judge’s job easier.17 These practice pointers are not offered just to make the jobs of ALJs easier, but to improve the experience for all the participants in administrative hearings.
1 The author gratefully acknowledges the assistance he received from many ALJs at DOAH in identifying commonly occurring issues and suggesting how they should be handled.
2 Fla. Admin. Code R. 28-106.204(3).
3 Fla. Admin. Code R. 28-106.210.
4 See Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
5 Fla. Admin. Code R. 28-106.204(1).
6 Fla. Admin. Code R. 28-106.103.
7 Contacting the other parties to ask them whether they oppose a motion does not affect the deadline for a response to the motion.
8 Bid protests are hybrid proceedings and are not de novo in the same sense as the other cases heard at DOAH. See Fla. Stat. §120.57(3)(f).
9 Fla. Admin. Code R. 28-106.204(2) requires a motion to dismiss be filed within 20 days after service of the petition. See Carter v. Dept. of Professional Regulation, 633 So. 2d 3 (Fla. 1994), for a discussion of procedural errors involving statutory time limits.
10 This is the approach recommended by Professor Ehrhardt. Charles W. Erhhardt, Florida Evidence §103.2 (2007).
11 There is at least one Florida case that held otherwise. TriState Systems, Inc. v. Dept. of Transportation, 500 So. 2d 212 (Fla. 1st D.C.A. 1986) (hearsay evidence presented without objection was usable as proof just as any other evidence). Nevertheless, a prudent lawyer would not prepare a case that cannot prevail unless no party objects to the hearsay evidence and the ALJ accepts it as sufficient, alone, to prove a fact.
12 Fla. Stat. §90.804(4) (2007).
13 Fla. Stat. §90.803(18) (2007).
14 Fla. Stat. §90.805 (2007).
15 The determination of whether a witness is qualified to express an opinion is within the discretion of the ALJ and will not be reversed absent a showing of clear error. Ramirez v. State, 542 So. 2d 352 (Fla. 1989).
16 Fla. Stat. §90.612(2)(2007).
17 Morris B. Hoffman, Top 10 Trial Mistakes, The Docket, Denver Bar Association (Nov. 2001).
Bram D. E. Canter received his J.D. degree 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 Law, 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 2005.
This column is submitted on behalf of the Administrative Law Section, James A. Bertron, Jr., chair, and Deborah K. Kearney, editor.
