Links to Agency Websites
Model Forms (e.g. Subpoenas; Notice of Appearance; Notice of Action in Judicial Appeals)
Web Based Electronic Records
Pre-Hearing and Post-Hearing Memoranda
by Dorinda Lang, Administrative Law Judge
Vol. 21, October 2001
Written memoranda are not always requested or necessary in hearings before the Office of Administrative Hearings (“OAH”). If the Administrative Law Judge requests one, however, he or she expects the parties to submit them and in a timely manner (the time for submission being set by the Administrative Law Judge).
OAH procedural rule R2-19-116(G) specifically allows the Administrative Law Judge to “permit or require” written memoranda to be submitted after the close of a hearing. The Administrative Law Judge may also permit or require the parties to submit one before the hearing, particularly as a result of a pre-hearing conference under OAH procedural rule R2-19-112.
If a party wishes to submit a memorandum for consideration by the Administrative Law Judge without having been requested to do so, the best time to submit it is at least a couple of days prior to the hearing. The OAH staff files documents received in the course of business pursuant to OAH procedural rule R2-19-108 . This rule merely allows the OAH staff to file documents in the appropriate case file. It states that “documents” that can be filed may include briefs, which are essentially the same thing as memoranda. The rule also requires that a copy be served on all parties.
Once the hearing is over, however, the only documents accepted by the Administrative Law Judge are those already requested prior to the end of the hearing and for which the record was specifically held open. Memoranda submitted after the close of the hearing, if not previously requested by the Administrative Law Judge, will be returned in the mail with a letter stating that the record in the matter has been closed.
A party or representative appearing at an OAH hearing may be faced with writing a pre-hearing or post-hearing memorandum at the request of the Administrative Law Judge when they had no intention of doing anything so technical for the case. Those without legal experience may feel a bit overwhelmed by the prospect and be concerned about what to submit.
But a memorandum is nothing more than a very short position paper. A brief statement of the case and why the party believes it should prevail, clearly stated and amenable to reason, should suffice. If the party is relying on a particular statute or rule, a proper citation is appropriate. If referencing an agency policy or other document, attach a copy of it to the memorandum.
Organization of points into separate headings, formulation of clear thoughts and use of appropriate sentence structure may make the party’s case more clear and memorable to the Administrative Law Judge, possibly increasing the chances of receiving a favorable recommendation. Thus, the task of writing a memorandum is usually viewed as an opportunity rather than a chore.
If, for any of the above reasons, you are submitting a memorandum for a hearing at the Office of Administrative Hearings, keeping the above points in mind will help you make your case.