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THE PRE-HEARING CONFERENCE - IT WORKSby George A. Schade, Jr., Administrative Law Judge
Vol. 18 January 2001
Director’s note: OAH is committed to fairness and making hearings accessible to all. This article is the fourth in what we at OAH plan to be a series of informational articles to educate the public and parties who appear before us about the hearing process and how to better present their cases. This and previous articles are available on OAH's website here.
Although pre-hearing conferences are permitted under the statutes and rules of the Office of Administrative Hearings, it is the most underutilized effective procedure available for the resolution of administrative cases.
Two limitations in the current practice of administrative case resolution highlight the usefulness of pre-hearing conferences, first, the very limited availability of formal means of discovery and, second, the deliberate speed with which the system now moves. The administrative arena has no provisions for the use of interrogatories, requests for admissions, inspection of premises, and physical and mental examinations. A deposition is restricted to a witness who cannot be subpoenaed or who is unable to attend the hearing, and then in the manner and on the terms designated by the administrative law judge. Even subpoenas for production of documents are subject to a showing to the Administrative Law Judge that the party seeking discovery demonstrates that the party has a reasonable need for the discovery sought.
A central mandate of the regulatory reform brought about during recent years is a speedy resolution process. Hearings must be held within a certain number of days following an appeal, and recommended decisions must be submitted and acted upon within strict time deadlines. Once a request for a hearing date is filed with the Office of Administrative Hearings, the parties can expect a setting within a quick and short time, leaving a precious minimum of adequate time for pre-hearing discovery and preparation. A pre-hearing conference will help counsel and parties to get around these two obstacles. Both discovery and a reasonable timeline - which will insure better preparation for an effective hearing - can be obtained through a pre-hearing conference. Early settlement discussions can also be triggered.
Not all contested cases or appealable agency actions require or lend themselves to a pre-hearing conference. Some cases can be settled quickly, others do not present complex or difficult issues, and some cases do not merit the investment of legal resources associated with a pre-hearing conference.
But a pre-hearing conference can be quite effective in cases that:
1. Present scientific or technical issues such as environmental, land or water resources matters.
2. Involve voluminous documents such as public procurement or education matters.
3. Promise a strongly contested adversarial proceeding such as professional disciplinary matters or money disputes.
4. Have experienced or specialized legal counsel who by their presence elevate the dynamics of a case.
A pre-hearing conference is not automatic; it must be requested (See OAH procedural rule 19-106(A)(4)). Consider filing a request for a pre-hearing conference as soon as a hearing date is obtained from the Office of Administrative Hearings. Due to the calendar demands upon the Office of Administrative Hearings, the Administrative Law Judge may not be able to schedule a pre-hearing conference for possibly two weeks after a request is made. The sooner a request for a pre-hearing conference is made, the earlier one can be set, and consequently, more time can be gained for case preparation and hearing strategy.
One possible negative of an early request, however, is that the other side may not be fully prepared, but this exposes a situation that you may wish to know early.
Although not required to do so, generally the Administrative Law Judges of the Office of Administrative Hearings issue a pre-hearing order outlining the issues to be discussed. In your request for a pre-hearing conference, feel free to suggest issues, subjects or themes for the judge’s pre-hearing order.
A.R.S. § 41-1092.05(F) specifies the areas that can be explored at a pre-hearing conference. They are:
1. Clarify or limit procedural, legal or factual issues.
2. Consider amendments to any pleadings.
3. Identify and exchange lists of witnesses and exhibits intended to be introduced at the hearing.
4. Obtain stipulations or rulings regarding testimony, exhibits, facts or law.
5. Schedule deadlines, hearing dates and locations if not previously set.
6. Allow the parties opportunity to discuss settlement.
These objectives are clear. The benefits of all are self-evident. But some objectives are generally more productive than others and deserve pursuit.
First, consider the use of substantive pre-hearing motions. Draft and request a schedule for filing and briefing pre-hearing motions to address specific legal issues. Focus on the key issues of law which the case presents, rather than on simply procedural issues or issues which can be resolved at hearing.
Pre-hearing motions serve to address key legal issues, to assess the level of factual preparation and knowledge of the applicable law existing on the other side, and to update the administrative law judge’s knowledge of the applicable statutes, case law and agency policies. Second, ask for an early exchange of proposed exhibits and witnesses. This effort will accelerate discovery and enhance your preparation for hearing. It may also move settlement talks or possibly lead to a mutual resolution.
Third, for a complex case, discuss the use of a certified court reporter. The main issues to be addressed would be (1) who will pay for the reporter and (2) will the court reporter’s transcript be the official record of the hearing for purposes of decision-making and judicial review. The hearings at the Office of Administrative Hearings are taped, but a court reporter’s transcript is easier and faster to generate and will greatly facilitate the Administrative Law Judge’s analysis and drafting. For the complex or lengthy hearing, a court reporter’s transcript is invaluable. Fourth, consider an infrequently mentioned but potentially very useful action, namely, a request to visit or inspect premises or other facilities which could help your preparation for the hearing. Visits to construction sites, homes and water sources have been made with very effective results.
If a visit or inspection of a particular location would benefit either your presentation or the Administrative Law Judge’s understanding of factual issues, request making a visit or inspection. Granting the request, however, is within the discretion of the Administrative Law Judge.
Under the rules of the Office of Administrative Hearings, the Administrative Law Judge is not required to memorialize the outcome of a pre-hearing conference (see OAH procedural rule 19-112). Therefore, the best practice is to request that the Administrative Law Judge issue a written pre-hearing order memorializing all directives and agreements.
The conclusion of a pre-hearing conference does not necessarily mean the end of this procedure. The progeny of the pre-hearing conference are the Status Conference and the Telephonic Conference. An Administrative Law Judge has discretion to schedule pre-hearing and status conferences. The rules of the Office of Administrative Hearings provide that a pre-hearing conference may be held telephonically.
Consider asking the Administrative Law Judge to direct the submission of a written status report at an appropriate time in the future (a useful procedure in highly technical cases or in matters requiring a course of action over a designated or prolonged period of time), or to schedule a status conference or even another pre-hearing conference. Request that the Administrative Law Judge make himself or herself available for a telephonic conference to discuss issues encountered following the initial pre-hearing conference. A telephonic conference can be very effective to resolve last minute “flare-ups.”
Once a pre-hearing conference has been held, the Administrative Law Judge and counsel will know each other better. Subsequent status or telephonic conferences are easier to have once everyone knows each other better. Therein lies a powerful but not always evident benefit of an early pre-hearing conference - positive rapport and trust can be established among the participants.