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Opening Statement and Closing Argument
By Brian Brendan Tully
Vol. 27, April 2003
Opening statements and closing arguments delivered during an administrative hearing are not considered evidence by the Administrative Law Judge who conducts the hearing. They are presented by a party, a party’s authorized representative, or a party’s legal counsel. Such statements are not given under oath or affirmation and are not subject to cross-examination by the opposing party.
Opening statements are presented prior to the parties presenting their respective cases. Opening statements are an opportunity for the parties to briefly outline their respective presentations to the Administrative Law Judge. Because such statements are not presented under oath or affirmation subject to cross-examination, the opening statement is not the time for a party to explain their entire case. If a party were to do so, that party would be required to repeat the explanation under oath subject to cross-examination in order for the explanation to be considered testimonial evidence.
At the conclusion of the parties’ presentations, they are afforded an opportunity to present closing arguments. Closing arguments provide an opportunity for the parties to summarize their respective positions and to make recommendations to the tribunal based upon the evidence of record. Generally, the party with the burden of proof delivers the first closing argument. The opposing party then goes next. The party with the burden of proof may, at the discretion of the Administrative Law Judge, be given an opportunity to deliver a final response or reply to an opposing party’s closing argument.
After the parties’ closing arguments, the hearing is concluded. The Administrative Law Judge will then consider the evidence presented during the hearing in preparing the recommended decision.