When the Judge has authority to fix the place of hearing, he should consider the convenience of the parties, their representatives, witnesses, and the public. Washington will frequently be more convenient for industry representatives, their counsel, and expert witnesses. On the other hand, in cases having a particular local or regional impact, such as power plant sitings, most of the interested civic persons or groupsthose least likely to be able to bear the expense of distant hearings-will be located in the field. Futhermore, in such cases local citizens and groups are not likely to be informed of industry positions and contentions if they must rely on news from Washington reported by national wire services; whereas local press coverage of hearings in the field will generally be extensive.

A possible compromise is to permit local groups to present their cases in the field and the industry to present its case in Washington. This minimizes travel problems with some sacrifice of information to local groups.

A notice of hearing complying with statutory requirements and agency rules should be served upon all parties.51 In addition, statutory provisions or agency rules may require notice to

51 Appendix 11 is a sample of a notice of hearing.

be published in the Federal Register. Even though responsibility for notice may fall on agency staff, the Judge himself should see not only that all legal requirements are complied with but also that all persons who participated in the prehearing conference or requested notice receive actual notice.

B.

Mechanics of the Hearing

There is no standard model for a formal administrative hearing. The organization and form depend upon such factors as the type of case, the issues, the number of witnesses, agency custom, and the temperament of the Judge. The one common criterion is the development of a fair and concise record.

A formal administrative hearing should possess substantially the same formality, dignity, and order as a judicial proceeding.52 It should move as rapidly as possible, consistent with the essentials of fairness, impartiality, and thoroughness.

All formal proceedings are reported verbatim.53 The reporter may use shorthand, stenotype, or any other recording device. Copies of the transcript are made available to the parties, ordinarily at rates established by the agency but in some agencies without charge. Daily copy is usually available at a substantial premium if the reporting is done by a private company. Pursuant to the Federal Advisory Committee Act all agencies are now required to make copies of the transcript available to any person at actual cost of reproduction.54 In addition, most if not all agencies make copies of transcripts available for inspection at the agency offices.

52 Smoking should not be permitted and, customarily, male counsel wear jackets. At OSHRC, robes are worn by Judges.

53 See, e.g., 5 U.S.C. § 556(e) (1970).

54 See 5 U.S.C. App. 1, § 11 (Supp. II, 1972) (Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770).

Since an accurate transcript is essential the Judge should insure faithful reproduction. With a new reporter, it may be desirable to have material read back early in the hearing to determine its accuracy. Before the hearing opens the reporter should be advised to notify the Judge if he encounters personal fatigue, need to change tapes, inability to hear the parties, or other difficulty which might interfere with an accurate transcript. On the other hand, the reporter should not be permitted to interrupt except for mechanical or personal

reasons.

2. Judge's Opening Statement

The Judge should call the hearing to order, announce the title of the case, and, if necessary, give preliminary instructions concerning decorum, procedure, and hearing hours. The opening should of course be adapted to the type of case and the circumstances. When all interested persons are represented by knowledgeable and experienced counsel the opening statement can be brief. But if interested members of the public are present, or some counsel are unacquainted with the agency's hearing procedure, the Judge should explain in detail what the case is about and the procedures to be followed.

3.

Appearances and Preliminary Motions Appearances should be entered in the same manner as at the prehearing conference." The Judge should receive, and either dispose of or take under advisement, any preliminary motions. Motions relating to hearing procedures (for example, a motion concerning order of presentation), should normally be disposed of at once.

4. Presenting the Case

The following suggestions are directed to the case in which written testimony has been exchanged before the hearing. 55 See p. 5 supra.

a.

Direct Presentation-Each party should be called

upon in the predetermined order to present his entire case, including all rebuttal testimony. Counsel may be required or permitted to make an opening statement. This is of course not subject to cross-examination, though limited questions may be permitted for clarification.

57

56

Normally counsel should first present all of his exhibits to be marked for identification, and he should specify which exhibits will be sponsored by each witness and the order of presentation. He should then call his first witness (who is sworn by the Judge), qualify him, have him sponsor his exhibits, and commence direct examination. This testimony should be confined primarily to the correction and clarification of the witness' exhibits and to matters that have occurred since the exhibits were prepared. Exhibit material should not be summarized, repeated, or read. Following direct examination, counsel should offer the witness' exhibits in evidence before the witness is released for cross-examination.

In the event that cross-examination on any exhibits has been waived,58 counsel, after having them marked for identification, may simply offer them in evidence. They should be received subject to any objection other than lack of oral sponsorship.

b. Receipt of Exhibits-When exhibits are offered, the Judge should consider motions to strike.59 He should take careful note of the material objected to and the basis of ob56 The following oath or affirmation is sufficient.

"Do you solemnly swear (or affirm) that the testimony you are about to give is the truth, the whole truth, and nothing but the truth (so help you God)?"

57 The sponsoring question may be phrased as follows: "Were exhibits prepared by you or under your control and supervision and are they true and correct to the best of your knowledge and belief?”

58 See p. 21 supra.

59 See p. 9 supra.

jection. When all objections have been received, he should announce what testimony (not otherwise objected to) the Judge himself deems improper, giving his reasons. Counsel for the witness should ordinarily be permitted to reply. The Judge should weigh the arguments, perhaps during a short recess, and rule on the admissibility of all challenged portions. The advantage of considering motions to strike at the outset is that it eliminates cross-examination on inadmissible evidence; objectionable material, if admitted, frequently generates the most cross-examination. Additional motions to strike may be entertained at a later time based on further developments at the hearing.

The reporter should mark each exhibit "Received" or "Rejected" pursuant to the Judge's ruling. Ordinarily, excluded material will not be physically removed but will accompany the record with the notation "Rejected". This material is not a part of the record and is not considered by the agency except to rule on the correctness of its exclusion. Counsel should be directed to delineate stricken portions on the record copies.

Factual exhibits are sometimes interlaced with argumentative, redundant, and inconsequential material. Rather than take the time to go through the exhibits word by word or line by line to strike such matter, it is frequently quicker, easier, and more satisfactory for the Judge to announce that he will not consider such material but that if anyone attempts to cross-examine on it, it will be stricken.

Cross-examination-The Judge should establish that order of cross-examination which will develop the most concise and clear record. This frequently cannot be determined until the direct evidence has been presented. Ordinarily priority is given to that party who will have the most exten