Practice pointers for administrative hearings examination of witnesses.

• Author: Canter, Bram D.E.
• Position: Administrative Law

This article supplements "Practice Pointers for Administrative Hearings," which appeared in the February 2008 issue of The Florida Bar Journal. (1) The focus here is witness examination. No attempt is made to cover all the techniques and strategies that make up the art of witness examination. The objective of this article is to describe some of the fundamental procedures and concepts of witness examination to assist attorneys who appear in the evidentiary hearings held before the administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH).

There are a wide variety of cases that fall within DOAH's jurisdiction, and DOAH hearings can range from those that last only a few hours, with an unrepresented petitioner, an agency attorney, and a couple of witnesses; to complex cases that last two or three weeks with a dozen lawyers and a score of expert witnesses. These practice pointers will serve an attorney appearing in any DOAH hearing, but they become more important as the hearings increase in complexity and intensity. ALJs have discretion in the management of attorneys and witnesses and can allow deviation from some of the general procedures that are discussed below.

Examination Outline

Good preparation is essential to the effective examination of witnesses. There are attorneys who can examine witnesses extemporaneously, without written aids, but their number is small. An extemporaneous examination might be perceived to be more impressive, but there is nothing wrong with referring to notes, and it is far better than forgetting a particular inquiry. Most attorneys will greatly benefit by preparing an examination outline for each witness as a guide to asking all the questions needed to establish material facts in a logical order and to refute adverse evidence. The outline can also identify the appropriate points during the examination to offer exhibits into evidence. Preparation of the outline will help the attorney focus on what must be proved or rebutted, not just in broad terms, but down to each material fact that will determine whether the contested agency action is valid or invalid.

Different styles of outline can be employed, depending on the individual attorney. Some attorneys will have an outline of complete sentences. That approach can reduce objections to the form of the questions and could be of particular help for attorneys appearing in their first hearings. An outline consisting of key words and material facts is probably most common, with greater detail for the witnesses or inquiries that are anticipated to be difficult.

Another use of the outline is to anticipate objections to testimony or exhibits with notes about the arguments that will be made. If an argument is based on the wording of a statute or rule, or on a court opinion, the outline can contain citations to authority. The attorney should be prepared to provide the ALJ and opposing counsel copies of the cited law. Using an outline in this way arms the attorney with an immediate and thoughtful response to the objections raised by opposing counsel and allows the attorney to interject objections to opposing counsel's questions and exhibits with more persuasiveness.

Direct Examination

Direct examination should be conducted with nonleading questions and is usually most cogent when the witness discusses chronologically his or her involvement in relevant events. (2) Generally, the questions should be short, and there should be a separate question for each discrete action or material fact. Compound questions and questions that invite ambiguous answers should be avoided: "Did you see or hear the collision, and did your wife as well?" Avoid open-ended questions that give no hint as to whether the answer would be relevant and that leave the witness to wander with no guidance: "Is there anything else you want to say?"

One form of question heard on direct is "Would it be fair to say that ...?" This is a leading question because it contains the desired answer. It is also leading the witness to make a statement and then ask, "Is that correct?" Just because these questions call for yes or no answers does not make them nonleading. These forms should only be used during cross-examination.

Attorneys often struggle with a line of questions and encounter objections when they are trying to get a witness to find and read a statement contained in an exhibit. If the attorney's purpose is to ask questions about an exhibit that has been admitted into evidence, there is no need to use the witness to find, identify, and read the statement. It is much more efficient to simply incorporate the exhibit statement into the question: "In the agency staff report, there is a statement that the petitioner has already received $12,500 in assistance. Do you agree with that statement?"

If an attorney wants to bring to the attention of the ALJ a statement in an exhibit, there is no need to use a witness as a middleman. Once an exhibit is admitted into...