Administrative hearings come in all varieties ranging from a local government building permit issue to a Medical Board license revocation case. More often than not the nature of the rights at stake in the administrative hearing are quite significant. In particular, the California Administrative Procedure Act governs the rights of licensees in defending disciplinary actions against their licenses, appealing license denials, and other proceedings. So often the stakes are high and career ending in administrative hearings. Yet at Simas & Associates, we see time and time again, licensees and other administrative litigants try to represent themselves to save money. Don’t let the informal nature of an administrative hearing fool you! While these types of proceedings are designed to be far less formal than court proceedings, the consequences are very formal.
This article is to discuss the top five (of many) reasons why anyone appearing at an administrative hearing, especially involving a professional license, civil service employment, or other significant right, simply must have competent and experienced legal counsel beside them during this process.
Reason #1: Admission of evidence
A casual observer of an administrative proceeding or someone who reads about how such proceedings typically work would note that “the rules of evidence are not as formal as in court.” While this statement is true, it is often the undoing of administrative litigants who represent themselves and later try to appeal.
The main difference between court and administrative hearings is that in administrative hearings hearsay evidence is admissible. Hearsay evidence, simply stated, is a statement made outside of court that one of the parties is trying to introduce in court to show that the statement is true. Most often in administrative hearings hearsay evidence is presented in documents. For example, if Susan Smith prepares a performance evaluation of employee Bob and does not appear to testify regarding the truthfulness or accuracy of her performance review of employee Bob, the contents of the review are hearsay. In court such a document would not be admissible without Susan Smith testifying to “authenticate it.” In administrative law, the hearsay may come into evidence but there still remains a significant problem those who represent themselves overlook.
While hearsay evidence is admissible in administrative proceedings, the administrative law judge or hearing officer cannot base a finding upon it. So if the hearing officer wanted to conclude that employee Bob is a terrible employee based on Susan Smith’s performance review, the administrative law judge or hearing officer could not do so if the performance review was admitted as hearsay. Both the California courts and the Administrative Procedure Act make quite clear that a party who fails to object to administrative hearsay cannot do so later. In other words, unless there is a verbal or written objection on the record of the administrative proceeding, the evidence will likely come into evidence and the judge can premise a finding upon it. This is perhaps the most common error the attorneys of Simas & Associates see regarding licensees and other administrative litigants who represent themselves.
Reason #2: What evidence do you need?
In nearly all administrative hearing matters, the government agency bringing the action has already made its case against you and has lined up all of its evidence, investigation, reports, witnesses, etc. So what evidence do you have?
It is essential to present evidence to refute and address the specific charges or allegations which serve as the basis for the administrative action. Most people understand presenting a defense or contesting charges. But evidence of “remorse” or “rehabilitation” is not so obvious and is is essential to address any potential penalty the hearing officer seeks to impose.
Especially in licensing cases, most agencies have prescribed certain rehabilitation factors or mitigation factors that they must consider in assessing any type of penalty. In other words, there are certain types of evidence the agencies expect you to produce. If you do not produce such evidence such as demonstrating remorse for a prior transgression, how an issue has been addressed and will not recur, etc., the administrative law judge or hearing officer will impose a far more significant penalty than if you present proper evidence of remorse.
Reason #3: Keeping track of all that is going on
In a very recent hearing lasting nearly two weeks at the California State Personnel Board, our trial team found itself simultaneously reviewing a 300-page audit report of a witness who did not prepare it, objecting to improper questions including hearsay, consulting with our client about his knowledge of the events which contradicted that of the witness, and taking outstanding notes to make sure we properly cross examined the witness five hours later when it became our turn. To achieve this, we had two attorneys and a paralegal assigned to the trial team in this case.
The point here is twofold. First, no one who does not have experience can possibly keep track of all that is going on in an administrative hearing that needs to be tracked. Second, even experienced legal counsel sometimes needs reinforcements with paralegals and other counsel during a big case with lots of documents and lots of information. By handling this case in this manner and being able to track every aspect of the state agency’s case, we managed to keep out significant portions of damaging evidence simply by objecting and pointing out that the evidence was premised upon hearsay without other support.
Reason #4: Knowing what the judge and the agency want
There is no substitute for experience. In addition to the stress and uncertainty of having to face an administrative hearing process and the significant issues it brings, the attorneys of Simas & Associates have been through this process hundreds of times before. This benefits us in several ways. First, we know how to prepare and what to prepare for. In addition, we know how to make the administrative law judge’s or hearing officer’s job easier. There are no juries in these cases, only hearing officers. Accordingly, the easier you make the case or break down the complicated issues being litigated, the easier it will be to convince the judge to rule in your favor. A judge who does not understand the issues will never rule in your favor—and if he or she does so, it will be subject to appeal. Finally, we know what the agency can and cannot do. In addition to the truth of the evidence presented in the agency’s case, there are many procedural issues and arguments that can sometimes completely defeat an agency’s case. Many of these concern due process and notice to a hearing, but others include delay in bringing a case, conflict of interest among the agency decision makers, etc.
Reason #5: Perspective
True of all types of litigation, he or she who is on the hot seat and the subject of the litigation does not have perspective. Yes this is a fancier way of stating that “he who represents himself has a fool for a client.” This particular reason is why even attorneys facing State Bar discipline cases should hire legal counsel. Even if the attorney who is the subject of charges or possible disciplinary action by the State Bar has the skill set to represent himself or herself, does he or she have the perspective to do so? When you are the subject of the hearing, it is very difficult to sit through it, take good notes for cross examination, make timely objections, and dispassionately argue the merits of your case. In addition to our many years of expertise in administrative law and litigation, we bring perspective to administrative hearings.
There are many more reasons to hire a competent administrative lawyer than the five discussed in this brief article. But all of these reasons have two goals in mind. The first goal is to win the case outright if possible or minimize the negative impact on our clients. The second goal is always to document all technical, evidentiary, and legal arguments for a potential appeal known as a petition for writ of mandate.
Again, many clients contact Simas & Associates who have represented themselves seeking to file a petition for writ of administrative mandate and they have severely harmed their case by not properly objecting during the administrative hearing or making other omissions that cannot be overcome. To protect your license and your rights in an administrative hearing, and to avoid the pitfalls outlined in this article, please hire competent and experienced administrative lawyers such as Simas & Associates.