Pet Peeves and Other Musings of an Administrative Law Judge

• Publication year: 1997
• Pages: 17

26 Colo.Law. 17 Colorado Lawyer 1997.

1997, December, Pg. 17. Pet Peeves and Other Musings of an Administrative Law Judge

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17

Vol.26, No. 11, Pg. 17

The Colorado Lawyer
December 1997
Vol. 26, No. 12 [Page 17]

Departments
Judges' Corner
Pet Peeves and Other Musings of an Administrative Law Judge
by Marshall A. Snider

Administrative proceedings in Colorado are conducted with varying degrees of formality. In some contexts administrative hearings are very informal. Conversely, at the Colorado Division of Administrative Hearings, where this author is employed, most hearings are at the formal end of the spectrum. Administrative law judges at the Division preside from a raised bench in a courtroom, wear judicial robes, and generally follow the rules of procedure and evidence applicable in state district courts

Regardless of the level of formality, there are a few points practitioners would be wise to keep in mind when trying cases before any administrative tribunal. For the most part, these suggestions are nothing new: they apply equally to trials before any court sitting without a jury. Nevertheless lawyers appearing in administrative hearings are not immune to forgetting some of these basics. This article serves as a reminder of a few concepts worth remembering.

There is No Jury

A trial to the court or any quasi-judicial officer is a very different animal than a jury trial. Nevertheless, some lawyers fail to observe or adjust to the distinctions. Administrative decision-makers are professional fact-finders. They are not susceptible to many of the techniques that are designed to persuade a lay jury. For example, pleas to emotion are no substitute for proven facts. Similarly, a question to a witness does not constitute evidence that will support a finding of fact. The evidence must come from the exhibits or the mouths of the witnesses. No amount of emotional posturing, startling questions, or subtle suggestions will take the place of real evidence.

In addition, it is unavailing and needlessly time-consuming to attempt to keep evidence out of the record because it is "prejudicial." To begin with, prejudicial evidence is not inadmissible. To the contrary, most evidence presented by one party to a controversy is designed to be prejudicial to the other side. Only evidence that is unfairly prejudicial may be excluded under the rules of evidence.1 Further...