Practice pointers for administrative hearings.

• Author: Canter, Bram D.E.
• Position: Florida

There are recurring issues and errors observed by the administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH) in the trial-like hearings conducted pursuant to F.S. [section] 120.57(1). The purpose of this article is to offer some pointers for lawyers who now appear or expect to appear in administrative hearings, so that they might avoid or deal more effectively with these common problems. (1)

Discovery Practice

The proceedings at DOAH move more rapidly than civil cases in the circuit courts. Most hearings are scheduled 60 to 90 days after a petition for hearing is filed with an agency. Therefore, it is not just advantageous to a lawyer to begin discovery immediately, as it would be in a civil case; it is essential.

Motion Practice

Motions are frequently filed at DOAH without the required statement as to whether the motion is opposed by any party. (2) This is not optional and a motion can be denied for omitting the statement. Most motions are ruled on by the ALJ without oral argument. When the moving party represents that the motion is not opposed, the ALJ knows there is no need to wait for responses from the other parties before ruling. Stating in the motion that a call was made to a party's lawyer, but the lawyer was unavailable, defeats the purpose of the rule. If the moving lawyer does not know whether the motion is opposed, the motion should include an explanation of the exceptional circumstances that justify the filing of the motion without the required statement.

There was once a time when joint or unopposed motions to continue the scheduled hearing were summarily granted at DOAH. Now, it is not uncommon for joint or unopposed motions for continuance to be denied if good cause for the continuance is not stated. A motion for continuance filed less than five days before the hearing requires an explanation of emergency circumstances. (3) If the parties move for a lengthy continuance because they are engaged in settlement negotiations, the ALJ may close DOAH's case, without prejudice to refile for a hearing if the parties are unable to reach a settlement.

When the ALJ begins a hearing by asking whether there are preliminary matters to discuss before the evidence is presented, one or more of the lawyers will often raise an issue that should have been resolved earlier by motion. One of the common issues raised as a "preliminary matter" at the beginning of the final hearing is a party's claim to have been prejudiced by another party's failure to produce documents or exchange exhibits on time. If there is genuine prejudice to a party's ability to prepare for the hearing, the ALJ will have to decide whether to continue the hearing or refuse to admit the untimely-produced documents into the record as exhibits. Of course, continuing the hearing can cause substantial inconveniences for all the participants. Excluding evidence, however, is also an unsatisfactory remedy when the documents have particular importance to the subject matter of the proceeding under the applicable statutes. The interests of justice can be thwarted by the exclusion of certain evidence. (4)

Another example of an overripe motion is a motion in limine or similar motion raised at the hearing to prevent another party from presenting evidence on a particular subject. If the request has merit, waiting to raise the issue at the hearing means that the parties have prepared to litigate an issue that might not be litigated--a waste of time, effort, and money.

Motions filed before the hearing are a far more efficient way to deal with these problems. A motion for prehearing conference can be a means to discuss with the ALJ numerous procedural and substantive matters that might otherwise become problems at the final hearing. Even a motion sought to be heard a few days before the hearing is more convenient and effective than a motion raised at the hearing.

Finally, a pointer about how a motion is served. The rules governing DOAH proceedings provide that a response to a motion may be filed within seven days. (5) The rules allow five more days for the response if the motion was served by mail. (6) The reader might be surprised at how often motions are filed under circumstances where time is a factor, as in the case of motions filed a few days before the final hearing and motions that request expedited action of some kind, and yet the motion is mailed rather than hand-delivered, e-mailed, or faxed. If a lawyer wants something to happen in a hurry, the motion should not be served by mail. (7)

Pro Se Litigants

One of the purposes of Ch. 120 is to make the formal action of an agency reviewable in proceedings in which a citizen can appear on his or her own behalf. Pro se...