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 Administrative Law Judge (ALJ) will not be interested in anything but evidence that relates to the issues, as the ALJ 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, an ALJ 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 offer 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.