Practice pointers for administrative hearings: use of exhibits.

AuthorCanter, Bram D.E.
PositionAdministrative Law

This article supplements "Practice Pointers for Administrative Hearings--Examination of Witnesses," which appeared in the July 2010 issue of The Florida Bar Journal. (1) The focus now turns to exhibits, with the objective of describing fundamental procedures and concepts regarding the use of exhibits in the evidentiary hearings held before administrative law judges (ALJs) of the Division of Administrative Hearings (DOAH). (2)

Planning

The effective use of exhibits at the final hearing begins with thinking ahead about each and every material fact that must be proven. In preparing for a hearing, a lawyer's thoughts should keep returning to the questions, "What facts do I have to prove?" and "How can I prove these facts?" Delay in identifying the exhibits that will be necessary or helpful to prove your case can reduce your chances of prevailing because exhibit disclosure deadlines, prehearing stipulations, and other constraints can make late efforts to obtain or prepare an exhibit ineffective.

Thinking about exhibits is not a task for the attorney alone. There will often be useful exhibits only a witness, especially an expert witness, is aware of or would think to prepare. Therefore, the exhibit list for a hearing should be generated in part through discussions with the prospective witnesses about exhibits. The attorney must independently assess the merits of each exhibit.

It is always helpful to prepare a trial notebook or outline for the final hearing. The notebook or outline should include notes about the appropriate points during your witness examination to offer exhibits into evidence. It can also include notes about the arguments you will make to counter anticipated objections and the objections you will make to the exhibits of other parties.

Exhibit Basics

The Order of Prehearing Instructions used in many DOAH cases requires that all exhibits be 8.5 by 11 inches in size or foldable to that size. Larger versions of an exhibit may be displayed and referred to at the hearing, but the exhibit admitted into the record should be 8 1/2 by 11 inches, if possible. Multi-paged documents must have page numbers and be stapled or otherwise bound. When only a few pages of a large document will be used, an excerpt of the document is preferable as the exhibit.

Premarking exhibits is also commonly required. If a prehearing stipulation has been filed, the exhibit numbers used at the hearing should correspond to the numbers used in the pre-hearing stipulation. The exhibits will be admitted as premarked, without regard to whether some exhibit numbers are skipped in the record.

Parties may offer joint exhibits. The term "joint" in this context does not necessarily mean, as it does with joint motions, all the named parties are of the same mind. Joint exhibits are often offered by opposing parties who use the term to mean only that there are no objections to the admissibility of the exhibits. The parties may still disagree with statements made in the joint exhibits and offer evidence to refute the statements.

Some attorneys will make the last item on their exhibit lists "all the exhibits of the other parties," or something similar. You invite a ruling that you have waived your objections to the admissibility of your opponents' exhibits when you make their exhibits your own in this way.

Unnecessary Exhibits

Attorneys sometimes find it difficult to be satisfied with stipulated facts, especially stipulated facts regarding standing. Yet, that is the purpose and benefit of stipulations--to eliminate the need for proof, including proof through exhibits. Stipulated facts in a prehearing stipulation are treated the same as proven facts. Any doubt about the meaning or effect of a stipulation can be resolved by having an explanation placed on the record.

It is a curious, but common, practice of attorneys to present witness testimony and offer an exhibit authored by the witness that contains the same information.

The exhibit is frequently unnecessary.

For example, if your witness explains the three reasons she objects to the agency action, it is unnecessary to also offer into evidence a letter she wrote explaining the three reasons--unless you have to prove that she wrote the letter. The letter is cumulative to prove her reasons for objecting.

Demonstrative Exhibits

Demonstrative evidence can be a photograph, diagram, outline, hand drawing, or other visual aide used during a hearing to help explain or illustrate testimony, but not intended to be admitted into the record. Occasionally...

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