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him or is not under his control, or if new evidence is discovered after the exchange of written evidence.
Written evidence is usually prepared in the form of exhibits, which may include narrative statements, testimony in question-and-answer form, tables, charts, and other documentary material. Each exhibit, if not self-explanatory, should contain notes or narrative to explain its meaning or purpose. Each separate document should be given an exhibit number, a symbol identifying the party submitting it, and perhaps, as set forth below, a symbol identifying its subject. Each volume of exhibits should include a table of contents or index. Where an exhibit contains extensive written testimony, it should have a separate index of the subjects covered.
Since the Judge must place reliance upon such index or table of contents when he prepares his decision or his personal index of the record," the Judge should direct that the titles aptly and precisely describe the contents. The parties should be particularly admonished to avoid argumentative titles—or "singing titles” as they are sometimes called.
In complex cases with several parties it is helpful to establish a uniform identification system. For example, in a transportation case involving an application for a new route, all parties may be required to put their historical traffic data in the A series, their traffic projections in the B series, and their revenue and expense estimates in the C series.
B. Elimination or Curtailment of
Hearing Suspensions Emergencies or unusual occurrences sometimes require a suspension of the hearing. Counsel or a witness may become ill, an out-of-town witness may be delayed, counsel may have
40 See pp. 45, 57 infra.
to appear in another forum, or it may be necessary to enforce a subpoena or to prepare rebuttal or cross-examination with respect to newly discovered evidence.
In some agencies, however, the suspension of hearings for substantial periods of time, especially in protracted cases, has become a regular-almost a scheduled-practice. In many cases, two or more of these suspensions occur, each lasting from a week to several months. As a result, the hearing may go on for years. Such proceedings are sometimes called "hearings by interlude.” It is generally agreed that protracted suspensions are usually unnecessary and should be avoided. They are usually granted in response to assertions that time is needed (1) to prepare cross-examination of oral testimony; (2) to prepare a defensive case or rebuttal after hearing the proponent's case; or (3) to devise defensive strategy after conclusion of cross-examination of the adversary's witnesses.
Procedures have been developed in recent years that permit the vast bulk of counsel's basic preparation to be completed before the hearing convenes. Hearings by interlude have been virtually eliminated in several agencies by such procedures as: (1) required inclusion of the direct case with the original petition or application; (2) exchange of direct and rebuttal evidence before hearing; and (3) the use of rebuttal experts rather than cross-examination to answer expert opinion testimony
C. Stipulations and Official Notice of
Documentary Material Stipulations and official notice can eliminate a substantial amount of factual presentation. Some agencies have provided by rule a list of the documents which will be officially noticed in formal proceedings." In the absence of, or in addition to,
41 CAB, 14 C.F.R. 8 302.24(m) (1973).
such a list the agency, the Judge, or both, may announce that official notice will be taken of certain specific material, subject to the right of any party on timely request to introduce contradictory evidence. The parties should be directed at the prehearing conference or by written notice to cite specifically any material of which they request official notice.
Parties can frequently agree to stipulate to the existence of certain facts or, even more often, to the reception of certain evidence without oral sponsorship. In multi-party proceedings the Judge may appoint a continuing committee composed of a few parties to consider proposed stipulations and to present them to the others.
The Judge's instructions concerning exhibits may provide as follows: (1) If a party wishes an exhibit to be received in evidence without oral sponsorship, he shall submit a written request to the Judge and all parties, accompanied by the exhibit in question and by a statement signed by the person sponsoring it that it was prepared by him or under his direction and is true and correct. (2) Within a specified time prior to the hearing any party desiring to cross-examine with respect to any such exhibit shall give the Judge and the parties written notice specifying the witness and the exhibit involved. (3) If no such request for cross-examination is received, the exhibit shall be received in evidence without oral sponsorship, subject to objection on any other ground.
D. Joint Presentations Persons or groups having the same or similar interests may be encouraged to present part or all of their cases jointly, thereby easing the financial and work burden of each, saving the time of the other parties, and shortening the record. The Judge may also encourage such persons or groups to select a single counsel to handle their cross-examination.
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In cases with many parties and of extreme complexity, the Judge may require parties with the same or similar interests to be represented by a single counsel in presenting a particular phase of their case. This might include direct examination, cross-examination, and briefing. The Judge may permit separate questions or argument about particular matters upon request by counsel who shows that his position differs from other members of the group.
Organizing the Hearing Except in the shortest or simplest cases, the order of oral presentations should be established well before the hearingin the prehearing conference report or by other notice.
The party with the burden of persuasion or proof should usually make the initial presentation, followed first by persons in support, second by persons in opposition, and then by others, if any. This order should be varied to fit the specific case. For example, frequently it is most convenient to first hear civic groups or individual participants with comparatively short presentations. Or such participants may be permitted to appear on a specific day even though it involves interruption of other testimony. In multi-party proceedings, each category of parties may be heard in alphabetical order or in any other convenient sequence.
Some parties or interested persons may find it impossible, or extremely inconvenient or expensive, to be represented at all sessions of the hearing. This is particularly true in lengthy and complicated cases with multiple issues, some of which are of no interest to certain participants. While counsel has the responsibility of being present when matters of importance to his client are discussed, the Judge should do what he can to prevent counsel's absence from prejudicing
his client. Major changes in scheduling, such as recalling a witness or having an additional day of hearings, will often inconvenience other parties. In some instances, however, the Judge may be able to make minor changes, such as recessing a hearing early and advising counsel to be present at the next session so that he can hear the damaging testimony. The Judge should encourage reduction of these problems by informal agreement among counsel—for example, agreement that certain issues will not be pursued on certain days or that upon request counsel will advise an absent party when a specific matter will be presented.
F. Committee for Interim and
Emergency Procedures When numerous parties or persons enter appearances it is often advisable to designate a representative for each identifiable group to communicate with the Judge and other parties concerning interim and emergency procedures. Through the committee of such representatives, the Judge or any party may communicate with each group to obtain its viewpoint or position. In the event any person objects to this procedure and does not wish to be represented, it is usually a simple matter to give him personal notice.
G. Telephone Conference Attendance at a prehearing or other conference may be by telephone. Such a procedure is specifically authorized, for example, at the Federal Communications Commission. “2 It can eliminate the expense and inconvenience of travel and may make the conference more productive when there is need for access to information available only at a party's home
42 FCC, 47 C.F.R. 8 1.248 (f) (1972).