If you attended the 2011 annual conferences of either the National Association of Hearing Officials (NAHO) or the National Association of Administrative Law Judiciary (NAALJ), or ever attended the Fair Hearing Course of the National Judicial College, you know that an issue ALJs and arbitrators regularly wrestle with is whether and how vigilantly to ensure the creation of an adequate record. In a nutshell, "it depends," as we lawyers and neutrals all like to say. As I've discussed elsewhere, a neutral generally will leave it to counsel to develop the record if the parties are represented, and there will be a greater obligation for the decision maker to step in if the parties are unrepresented, and/or if it is a non-adversarial proceeding involving substantial rights such as to income or licensing.
Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well. In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene
in civil cases where an unrepresented part faces violation of his or her due process rights. In that case, the lower court had imposed a 12-month civil contempt order against an unrepresented father in a custody proceeding.
Interestingly, the debate has finally extended to--or been formally recognized to extend to--the the judicial Courts as well. In Turner v. Rogers, No. 10-10, 564 U.S. ___ (June 20, 2011), the U.S. Supreme Court concluded that judges can and must intervene
in civil cases where an unrepresented part faces violation of his or her due process rights. In that case, the lower court had imposed a 12-month civil contempt order against an unrepresented father in a custody proceeding.
One commentator observes that, while the ruling might have caused a dither amongst the judiciary 10 or 15 years ago, a clear foundation for the ruling now exist in the ABA'a 2007 addition of Comment 4 to Rule 2.2 of the Model Code of Judicial Conduct. The comments now expressly permits "a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard." The commentator, Richard Zora, who is an attorney and coordinator of the Self-Represented Litigation Network (SRLN), goes on to note that "[a]fter Turner, the issues" will instead be "when" must judges intervene, "and how they can most effectively do so." See Richard Zora, "The Implications of Turner v. Rogers," The ABA Judges' Journal, Fall 2011, Vol. 50,. No. 4.
For my part, I am only surprised that it would take the courts so long to realize what ALJs have long recognized--that it is often necessary to question witnesses and litigants, and request specific documentary evidence, to make a sound and accurate ruling. In any event, Mr. Zora provides a number of handy "best practices" for the courts that, I am willing to wager, are already widely utilized by conscientious ALJs and hearing officials:
1. Introduce the case and explain the procedural context of the hearing.
2. Make sure the parties understand what is being decided at the current hearing.
3. Outline the procedure to be followed at the hearing, and remind the parties how much time they'll have to make their case during the hearing.
4. Explain the governing law (and, I'd add, the burden and standard of persuasion/proof).
5. Use simple language and invite questions.
6. Clarify that the judge's questions and interruptions have no purpose other than getting to the facts. (Meaning, they don't signal any prejudice!)
7. Consider dividing the hearing into small blocks, if it's complicated and deals with a number of discreet factual or legal issues.
8. Permit narrative testimony.
9. Allow parties to adopt their pleadings as their sworn testimony, if they are having difficulty speaking before you.
10. Ask questions to establish foundation for evidence, and to get to the necessary evidence.
11. Probe for detail as necessary.
12. Clarify the relevance of offered testimony if uncertain.
13. Give verbal and nonverbal cues of encouragement. An unresponsive demeanor often chills witness testimony, while most witnesses and parties understand such cues are only that, and not indicia of belief or bias.
14. Maintain control of the courtroom and help litigants stay focused on the matters relevant to the judge's decision.
15. Inform the parties know that evidence not objected to can be relied on, or can be deemed objected to and excluded, and that the judge can give whatever weight they choose to any evidence.
16. Let litigants know if they have failed to establish an important element of their case or defense, and give them the opportunity to fill the gap.
17. If a litigant wants more from you than you can proved as a matter of neutrality, let him or her know that.
18. Explain the ultimate decision, including acknowledging positions and strengths of both sides.
As any party or counsel who appears before me knows, I routinely employ these best practices as an ALJ/hearing official and as an arbitrator, where parties are appearing pro se. I personally endorse each of them as not only "best" but "necessary" practices, to ensure transparency, due process, and confidence in the tribunal.
If you are interested in arbitration, mediation, or contract ALJ services, please Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
