adminlaw
Judicial Edge
How to open an adjudicative hearing in 16 easy steps

By Hon. Tom D. Capshaw (Ret.)

Administrative Law
  1. Recite the title of the case, the date and the authorizing signature on the notice of hearing. (Review the affidavit of service to assure proper service if there is a nonappearance.)
  2. If necessary, briefly state the action which the agency proposes to take in the notice and summarize the issues or allegations.
  3. “My name is (Administrative Law Judge’s name). I am an Administrative Law Judge with the (agency), and I have been (appointed) (assigned) by (person appointing, such as the Chief ALJ) to hear this case. (In the case of an independent hearing agency or a division which is independent of the agency initiating the hearing: The agency is independent of the agency initiating this hearing.) This hearing will be conducted impartially and in a manner which is fair to all parties.”
  4. “The rules of the (agency), found at (cite to the rules), govern the conduct of this hearing. (If one of the parties is unfamiliar with/unrepresented/or requests) I will recite certain portions of the procedural rules before we begin the hearing.”
  5. “Part (section) of the rules provides that all parties have the right to present evidence, rebuttal testimony, and argument with respect to the issues, and to cross-examine witness.”
  6. “Part (section) of the rules sets out the rules of evidence for this hearing and reads as follows: The Administrative Law Judge may admit all evidence which possesses probative value, including hearsay, if it is the type of evidence on which prudent persons are accustomed to rely in the conduct of their serious affairs. The Administrative Law Judge shall give effect to the rules of privilege recognized by law. Evidence which is incompetent, irrelevant, immaterial or unduly repetitious may be excluded.”
  7. “Part (section) of the rules provides that the party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard.”
  8. If unrepresented parties are present, inquire of them whether the aforementioned rules are understood and explain the order of presentation of evidence.
  9. “This hearing will be recorded (on tape) (by a court reporter) (on videotape) in order to permit an accurate record. All proper names and technical terms should be spelled out and only one person should speak at a time. Any party may request that a transcript of the hearing be prepared; however, there will be a charge for the transcript.”
  10. “Following this hearing, I will submit a (report/decision/proposed decision/initial decision) consisting of Finding of Fact, Conclusions (of law) and (recommendation/order/proposed order) to (the agency or to whomever the statute requires). A copy will be mailed to each party or the party’s attorney. The Administrative Law Judge’s decision (is/is not) a final decision. (Here state who will make the final decision, how exceptions can be filed, and whether and how argument may be presented to the decision maker.) Any party aggrieved by the final decision has the right to appeal that decision. Your appeal rights will be detailed in that final decision.”
  11. “Will each of the attorneys and parties please note their appearances for the record, spelling your full name, and stating your address where all papers can be mailed?”
  12. “Are there any preliminary motions which any party wishes to make and have decided before proceeding?”
  13. “Are there any amendments to the (pleadings/moving papers/answer/other pleading) which either party wishes to make at this time?”
  14. “Have the parties been able to reach any agreements or stipulations with regard to any factual or legal issues or to the foundation for any documentary evidence?”
  15. “My review of the file indicates that the issues to be determined by me following this hearing are as follows: (list the issues). Do the parties agree or are there issues which I must decide which I have not noticed?”
  16. “There being no further preliminary matters, the party with the burden of going forward may proceed. Call your first witness.”

Tom Capshaw was an administrative law judge with the Social Security Administration from 1973 to 1998 and took senior status until he retired in 2007. He is co-author of “A Manual for Continuing Judicial Education, Practical Aspects of Handling Social Security Disability Claims,” and “A Quest for Quality, Speeding Justice.” A faculty member since 1980, he won the NJC’s V. Robert Payant Award for Teaching Excellence in 2002. This list is part of the materials for the course Administrative Law: Fair Hearing.

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