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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