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Order of presentation, Manner of Presentation and Conduct During Proceedings
By Casey J. Newcomb
Vol. 24, July 2002
The Administrative Law Judge begins a hearing by (1) reading the caption of the case; (2) stating the nature and scope of the hearing; and (3) identifying the parties, counsel and witnesses for the record. See Arizona Administrative Code (“A.A.C.”) R2-19-116(B). The parties should address the Administrative Law Judge as “Your Honor” or “Judge” and treat the Administrative Law Judge with courtesy, respect and deference.
The parties may present opening statements. An opening statement is voluntary. Generally, the party with the burden of proof makes the initial opening statement. In most cases, it is the Complainant or the Appellant who has the burden of proof. All other parties may make an opening statement in a sequence determined by the Administrative Law Judge. See OAH procedural rule 19-116(D).
At the conclusion of the opening statements, the party with the burden of proof shall initiate the presentation of evidence, unless the parties agree otherwise. However, the Administrative Law Judge may require another party to initiate the presentation of evidence. See OAH procedural rule 19-116(E).
A party initiates the presentation of evidence by testifying on his/her own behalf or by the direct examination (i.e., questioning) of a witness. An opposing party may cross-examine or ask questions of any witness. The parties shall conduct the direct and cross-examination of witnesses in the order and manner determined by the Administrative Law Judge to expedite and ensure a fair hearing. The Administrative Law Judge shall make rulings necessary to prevent argumentative, repetitive or irrelevant questioning. See OAH procedural rule 19-116(F).
A party should remember the following tips when questioning a witness during direct and cross-examination:
- A party must ask relevant and informative questions;
- A party must ask questions that will assist the Administrative Law Judge in making an informed decision;
- A party cannot argue with a witness or make statements or comments in response to a witness’ answer;
- A party cannot ask prejudicial questions;
- A party cannot ask questions that are designed solely to harass a witness;
- A party cannot repeatedly ask a witness the same question;
- A party must allow a witness a reasonable amount of time to answer a question;
- A party cannot interrupt a witness during the witness’ answer; and
- A party should refrain from asking multiple or compound questions within one question.
After the parties have concluded the presentations of their evidence, the parties may make a closing argument in a sequence determined by the Administrative Law Judge. See OAH procedural rule 19-116(G). A closing argument is voluntary. It allows the parties to summarize the evidence presented during the hearing and to argue their positions based on the evidence presented during the hearing. The Administrative Law Judge may allow the parties to supplement their closing arguments with written memoranda. See OAH procedural rule 19-116(G). However, the parties cannot present new evidence during the closing argument or via the written memoranda. If that occurs, the Administrative Law Judge may reopen the record to include the new evidence. However, in most instances, the Administrative Law Judge will not reopen the record and will ignore the new evidence.
Unless otherwise provided by the Administrative Law Judge, a hearing is concluded upon the submission of all evidence, the presentation of all closing arguments, or the submission of all post hearing written memoranda, whichever occurs last. See OAH procedural rule 19-116(H). The parties are encouraged to complete an evaluation of the hearing process at the conclusion of the hearing.