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office. The use of a telephone conference is discretionary, as it is not always practical in complex or multi-party cases.
H. Additional Conferences In a complex case, additional conferences, if needed, may be called at any time. These serve the same purposes as the original prehearing conference as well as to rectify or revise procedures that have broken down or to cope with new problems. Sometimes an additional conference may be scheduled at the opening of the hearing; but if further prehearing preparation is likely, the conference is best scheduled a reasonable time before the hearing.
I. Trial Briefs or Opening Statements Some cases, particularly the complex ones, can be facilitated by trial briefs stating the principal contentions of the parties, the evidence to be presented, and the purposes for which Such evidence is submitted. Such briefs may also present the results of research the Judge has requested on legal or technical problems. The Judge may instruct each party to include in the brief procedural motions and requests, such as motions to strike proposed written evidence. In lieu of, or in addition to the trial brief, the Judge may require an opening statement by counsel.
J. Interlocutory Appeals The rules of some agencies prohibit an immediate appeal from a Judge's interlocutory ruling without his permission and his finding that the allowance of an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to any party. Such rulings are subject to
43 See, e.g., FTC, 16 C.F.R. $ 3.23(b) (1973) and FCC, 47 C.F.R. § 1.301 (b) (1972). See also Recommendation 71-1, Interlocutory Appeal Procedures, 1 C.F.R. § 305.71-1 (1974).
review when the agency considers the case on its merits. A strictly applied rule limiting interlocutory appeals prevents unnecessary delay, avoids consumption of the agency's time on minor procedural matters, and saves the time and labor of the persons who would have to participate in the appeal.
K. Affirmative Action by Judge
to Develop the Record Throughout the proceeding the Judge should take affirmative action to develop a sound record. He should call attention to gaps in the evidence and insist that they be filled; he may call his own witnesses upon essential matters not covered by the parties; he should direct the parties, either on oral argument or by brief, to discuss any issues or points he thinks germane; and he may direct counsel to research a question of law or policy at any time.
44 Appendix 8 is a sample submission to the agency of an appeal from an interlocutory ruling.
45 Appendix 9 is a sample order directing the parties to research a question of law.
V. Intervention and Participation
By Non-parties 46
In some proceedings only the designated parties and the agency take part. Examples may include proceedings for the revocation or suspension of licenses or permits, or for the imposition of civil money penalties. Other proceedings, on the other hand, attract participation by many people—for example, most Atomic Energy Commission plant siting cases and Interstate Commerce Commission track abandonment cases. The agency may provide for two or more distinct categories of participation: intervention by interested persons wishing to assume all of the rights and duties of parties, and one or more forms of limited participation by interested persons who have insufficient interest or inadequate resources to assume party status.
Petitions to intervene must be handled expeditiously because persons cannot prepare their cases until they know their official status. If the Judge has authority he should decide interventions promptly; if not, he should immediately refer them to the agency.
46 See Recommendation 71-6, Public Participation in Administrative Hearings, 1 C.F.R. $ 305.71-6 (1974).
47 See, e.g., CAB, 14 C.F.R. $ 302.15 (1973). 48 Id. 8 302.14.
Appendix 10 is a sample order granting, denying, and dismissing petitions to intervene.
B. Limited Participation Although it is easier to manage a proceeding if all persons comply with the same rules and procedures, there are obvious advantages in the agency's providing some less expensive and burdensome modes of participation than assuming full party status. Such provisions typically leave the Judge considerable discretion as to the scope of activity allowed. One possibility is to permit any person to appear, present evidence, and submit argument, either written or oral, but to cross-examine witnesses only with the consent of the Judge. The Judge should supervise such presentations and seek a reasonable limit to the number of witnesses. He should explain their rights to inexperienced and uninformed persons, and devise ways for them to introduce evidence or state their position with minimal disruption of orderly procedure. He may, for example, himself call such persons as witnesses and question them to develop the facts or their point of view. As discussed earlier, if several such persons or groups represent the same or similar interests, the Judge should attempt to persuade them to consolidate their presentation and in some circumstances he may require them to do so.
To save work and expense, the Judge may limit the required distribution of documents to those persons who have a direct interest in the pertinent issue—subject, of course, to the right of any person to request any specific material. Interested persons or groups, with modest resources, may be permitted to file a limited number of copies of their exhibits in the public reference room of the agency instead of reproducing and mailing them to all the parties; or if the material is extremely brief, it may even be read at the hearing without prior delivery to the parties. Arrangements vary with each
50 See p. 22 supra.