Representing Yourself

Introduction

The purpose of this page is to explain the basics of representing yourself at an administrative hearing. What happens in your hearing may be a little different from the description here. This will depend on the type of hearing, the unique circumstances of your case, and the agency that made the decision from which you are appealing. Those differences are explained in this webpage.

Although it is generally desirable to be represented by attorneys, citizens who appear before the Office of Administrative Hearings (OAH) more often than not represent themselves. State agencies may be represented by an attorney; however, they may also be represented by agency representatives, who are not attorneys. Whether or not you or the agency has an attorney, Idaho law requires OAH Hearing Officers to provide “independent and unbiased decision-making” when hearing an administrative matter.

An administrative hearing is an informal way of resolving disputes between agencies and citizens without the strict procedural rules of a court. An OAH Hearing Officer conducts the hearing and prepares an order. Generally, an OAH Hearing Officer will prepare one of two kinds of orders: recommended orders and preliminary orders.

The difference is this: A preliminary order is one which may become a final order without any further action by the agency. A recommended order is different: it does not become a final order by itself; instead, an agency must issue the final order (or take other actions allowed by statute). The appeal rights section at the end of the OAH order will tell you what kind of order it is and what options are available after that order.

The Hearing Officer who hears your case is either 1) an employee of OAH, or 2) an attorney who has contracted with the OAH. Hearing Officers, whether OAH employees or contracting attorneys, are not employees of the agency which issued the administrative decision. The OAH is an independent, self-governing agency, which provides professional Hearing Officers who are specially trained in administrative law and who must abide by a Code of Conduct established by OAH.

Before the Hearing

Generally, the process before an OAH Hearing Officer first begins with an administrative order issued by the agency. The agency’s order will explain how a request for a hearing can be made. However, under Idaho law, not all agency actions are subject to a hearing before an OAH Hearing Officer, so it is important and necessary to carefully read the instructions and follow them exactly.

Scheduling the Hearing

After you properly request a hearing, if your matter is one that will involve a hearing before an OAH Hearing Officer, you will receive a notice setting a short telephone or video conference to discuss scheduling the appeal hearing. This notice will tell you the date and time of the hearing, as well as what number to call (or what video link to use).

The purpose of this conference is to set the deadlines for the case, including the date of the hearing before the OAH Hearing Officer. This is an important conference, so before the conference, make sure you have reviewed your calendar to identify any important upcoming dates, such as medical appointments, vacations, jury duty, etc., so that everyone participating can identify the best possible dates for deadlines and the hearing.

NOTE: Different agencies may have specific deadlines that govern how quickly a hearing must be held and decided. OAH will abide by these specific deadlines, and will identify those to the parties to ensure that the scheduling of the hearing will comply with those deadlines.

What if I can’t attend at the scheduled time? If you are unavailable at the time and/or place scheduled for the scheduling conference, you must contact the OAH as soon as possible before the conference to ask for a different date. The OAH Hearing Officer or OAH staff member will decide whether there is a good reason to reset the conference. Make your request as soon as you know you can’t attend the conference. Avoidable delay may result in a denial of your request.

What happens if I fail to attend? If you fail to attending the scheduling conference – or any other hearing set by the Hearing Officer – you may be found to be in default, meaning that the case will be completed without your participation, meaning that the case will be decided without you telling your side of the story.

What if I need an interpreter or disability assistance? All hearings are conducted in English. If you are not comfortable with English, the OAH will provide an interpreter. If you have a physical disability (for example, a speech or hearing impairment), which will prevent you from actively participating in the hearing, please notify OAH as soon as possible so that accommodations may be made. In either case, however, you must notify the OAH as soon as possible.

NOTE: You cannot bring a family member or friend with you to serve as your interpreter at the hearing.

What if my address or phone number changes? If your mailing address or telephone number changes at any time, please notify the Office of Administrative Hearings as soon as possible of your new mailing address or telephone number.

Can I contact the assigned Hearing Officer if I have questions about my case? Hearing officers are not permitted to discuss cases with only one party; instead, all parties must be present. If you have a question about your case, you should contact the agency and ask the agency to facilitate a status conference with your assigned hearing officer. A status conference is a way to get general questions about the proceeding answered, although a hearing officer will likely not address the merits of your case during a status conference. If you are having difficulties scheduling a status conference, please contact the Front Desk of OAH.

Preparing for the Hearing

Identify the issues

First, think about all possible issues in your case. Carefully plan your argument, outlining why you think the agency acted incorrectly and why your arguments should win. People sometimes emphasize the wrong issues, they bring up information having nothing to do with the issues in the case.

When identifying issues in your case, a good place to start is to think about the agency’s arguments against you. Those arguments will be in the agency’s administrative order; additionally, you may have a prehearing packet from the agency that will include the evidence it intends to offer in your case, and a summary of the arguments the agency will make. Make a list of what the agency might say about the case and why the agency thinks it made the correct decision. Make a list about why you disagree and think you are right.

Stick to the issues

Once you have identified all the issues, stick to them. As you select and collect your evidence, interview witnesses, and write your arguments, you should always stick to the issues. The Hearing Officer will not be interested in anything but evidence that relates to the issues, as the Hearing Officer does not have the authority to rule outside of the issues in the case.

Know what you are trying to prove.
Make only the essential points.
Don’t confuse the issues with irrelevant information – remember, a Hearing Office can refuse to consider irrelevant evidence.

Collecting and identifying evidence

Once you have identified the issues, the next step is to collect evidence that will help prove your case. Evidence includes your own testimony and supporting documents and witnesses that will help you prove that you are right. You can start collecting evidence by:

Reviewing all-important documents and records that relate to the issues in your case. Read each document and decide if it will help your case.
Interviewing people who have something to say that will help your case.

NOTE: Not every agency allows for new or additional information in hearings before the OAH. Sometimes, you may be limited to only using those witnesses and documents that were originally presented to the agency. These limitations may be found in either the agency’s governing statutes or its regulations. If you are not sure, you can generally ask at the time of your scheduling conference.

Selecting witnesses

Persuasive evidence is not determined by the amount of testimony. In other words, you don’t need many different witnesses to testify about the same facts – in fact, if you have multiple witnesses testify about the same facts, a hearing officer may not allow some of those witnesses to testify if their testimony is unduly repetitive. Bring the witnesses with the most reliable first-hand knowledge.

First-hand knowledge means that the witness personally knows something that helps prove your case, or is an expert who is able to over knowledgeable opinions about a particular subject.

You should talk with your witnesses before going to the hearing. You cannot, and must not, try to persuade them to give inaccurate or incomplete testimony. But you need to know what they will say if they testify for you. You may decide that you don’t want them. It is better to know that before the hearing, rather than to suddenly realize that while your witness is testifying.

Can I make a witness appear at the hearing? If you want to call a witness who you think won’t show up, you can potentially have that person “subpoenaed.” A subpoena is an official document, which requires the witness to appear and testify at a hearing. Generally, you can ask the agency to issue a subpoena for a witness by making a motion to the Hearing Officer to request that subpoena.

Pre-hearing submissions

Your scheduling order will generally include deadlines for documents you may need to submit or file before your hearing, including items like witness lists, exhibit lists (including providing a copy of your exhibits to the other party/parties), certain kinds of motions, and pre-hearing briefs summarizing your case and arguments. Be sure to meet all of those deadlines, as the failure to do so may result in you being limited in what arguments you can make, what evidence you can present, or even having your hearing cancelled.

At the Hearing

An administrative hearing is similar to a court trial (that is, a trial in front of a judge, but without a jury), but is less formal. Like a trial, its purpose is to gather facts through testimony, documents, and other evidence. However, unlike a trial, there is no jury, and the hearing will not be held in a courtroom.

Administrative hearings can be held in person, by telephone, on a video conference call (like Zoom, Webex, etc.), or even by some combination of those options (for example, an in-person hearing where one or more witnesses appear by video). Whether your hearing is scheduled to be in-person or by video/telephone, you must show up at the specified date, time and place, and in the manner stated in the notice.

Things you will need for the hearing

On the day of the hearing, you should have the following items with you:

all the exhibits that you want the Hearing Officer to consider;
a written list of points that you want to make;
a written list of any questions that you want to ask all the witnesses, both your own and the opposing party’s; and
pen and paper, so you can take notes.

Hearing procedure

A hearing procedure is generally as follows:

The first thing the Hearing Officer will do is to go through the exhibits, one by one, to ensure that both you and the opposing party have received them all. Those exhibits will then be admitted into the hearing record, unless either you or the other party objects. To be “admitted” means that the Hearing Officer will consider them in reaching a decision in the case.
Next, the Hearing Officer will go through the parties’ planned witnesses, to confirm which witnesses are present and will present testimony, as well as to determine if if either you or the other party objects to any of the witnesses.
The Hearing Officer will then identify the issue or issues to be addressed at the hearing.
Depending on the nature of the hearing, you and the other party may be given an opportunity to make an opening statement. An opening statement is an explanation to the Hearing Officer what the evidence will show and why the party should win. It is not the time to give actual evidence or to testify. You are not required to make an opening statement.
After opening statements, the Hearing Officer will listen to the testimony of witnesses. Who goes first (you or the opposing party) depends on who has the principal responsibility (“burden of proof”) of persuading the Hearing Officer to issue an order recommending the agency decide in their favor. Most often, it is the party which requested the hearing who will bear this “burden of proof.” Whoever it is, that party will call its first witness to testify. At the conclusion of that testimony, the other party can “cross-examine.” This continues until that party has no more witnesses to call. Often the Hearing Officer will ask several questions, perhaps right after the witness is sworn in or perhaps after you and the agency have asked all the questions you want.
After the first party’s witnesses have testified, the other party will now call its own witnesses. It is the same process as before: After each witness testifies, the other party can cross-examine.
Once all the witnesses have testified, you and the agency may be permitted to make closing arguments to the Hearing Officer (although, like opening statements, this depends on the nature of the hearing). A closing argument is one in which both of you, in turn, point out the evidence that was actually admitted during the hearing (testimony and exhibits) and the law which support your respective positions.
If the hearing is complex or lengthy, the Hearing Officer may request that you submit written closing arguments at some future date instead of presenting them during the hearing.
Following closing arguments, the hearing is concluded.
If your hearing if one where a court reporter is present, if you would like a copy of the transcript, you will generally need to pay for that directly with the court reporter.

The decision

After the hearing has ended and the record closes (that is, no more evidence will be considered), the Hearing Officer will review all the evidence and testimony. The Hearing Officer will not tell you the decision on the day of the hearing. Instead, you will receive the written decision by mail and/or email, probably a few weeks after the hearing itself or sooner, depending on agency requirements. If the Hearing Officer issues an order that is not in your favor, that order will include information about the next steps in the administrative process. If you want to appeal or ask for reconsideration, you must follow the instructions set out in the decision exactly.

Tips

While representing yourself in an administrative hearing might be intimidating, remember that good preparation will make your hearing go much smoother. Here are some other helpful tips:

If this is an in-person hearing (that is, a hearing conducted in a hearing room rather than over the telephone or by video), get there a few minutes early so that you can collect your thoughts and have enough time to set up.
Make sure your witnesses are available at the time and place set for hearing.
If your hearing is by telephone or video, make sure you read your notice carefully as it will state a certain phone number or internet address with an access code that you must use at the designated time.
Also, if your hearing is by telephone or video, check before the hearing that you have a good connection so that your call (or video feed) isn’t interrupted.
Make sure you have all exhibits you intend to use at that hearing; remember, too, that the agency will be using its own exhibits as well, so you’ll want to make sure you have a copy of all of the documents you received from the agency.
Have a checklist of the major points you wish to bring up in the hearing and the questions you want to ask of both your witnesses and those of the other party.
Remember that administrative hearings are usually governed by their own set of rules: the Idaho Rules of Administrative Procedure, a copy of which can be found here.
Always be courteous to the Hearing Officer, witnesses, and your opponent.
Speak simply, clearly, and concisely.
Focus on the key issues in the case.
If you need a break to gather your thoughts, just request one from the Hearing Officer; they will do their best to allow for a break, as long as it does not disrupt the hearing, so you may have to wait a bit before the Hearing Officer starts the break.