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notice of prehearing conference itself or in a supplemental letter.
Under the practice of many agencies, the Judge must establish the date and provide the notice of the prehearing conference." Although publication in the Federal Register may be legally sufficient, the public is best served if actual notice is given to all those with an apparent interest. If particular individuals or associations, few in number, are directly affected they should receive actual notice. If a specific geographic area is involved, it may be appropriate to notify local governmental authorities and civic groups individually. If many persons or groups may be interested, or if the identity of interested persons is not known, news media, including trade journals, may be used. Frequently, trade or professional associations will notify their members through regular or special circulations. The Judge may have to use his ingenuity to devise ways to notify all interested persons.
C. Settlement Negotiations If the proceeding is of a type that may be settled by private bargaining the Judge should permit such discussions. The extent to which he should participate depends on agency practice and his own judgment. In enforcement cases, he is often an active participant.
D. Transcript of Conference Some judges feel that the transcription of the discussion at the prehearing conference inhibits frank exchange. Whether or not this is so, it is certainly an expense that may be avoided
Appendices 1 and 2 are sample notices of a prehearing conference.
in simple cases if the Judge simply records agreements and rulings in notes or in dictation to his secretary. In complicated cases, however, any inhibiting effect is usually outweighed by the need to preserve the conference conditions, rulings, and agreements and the better practice is to have a verbatim report. The Judge may, of course, go off the record at any tme.
Conduct of the Conference The Judge should prepare, and may circulate in advance, a conference agenda. Obviously, those proposals or suggestions which affect the scope of the proceeding should be scheduled first. While the conference may be conducted informally, the Judge should insist that all remarks be addressed to him. He should permit reasonable discussion, but when a subject is exhausted, he should rule and move on.
Most conferences involve at least the following steps:
1. Opening Statement — The Judge should announce the name of the case, the tentative agenda, conference procedures, and other pertinent matters.
2. Appearances - Blank appearance sheets should be distributed before the conference begins and they should provide for the name and address of the person appearing and the name and the interest of the person he is representing. Particular attention should be directed to the line calling for the name and address of a single person upon whom formal service of all documents should be made. For the convenience of the Judge and the parties, oral appearances should also be entered.
3. Preliminary Matters — Before discussion of the agenda items, each person should be given an opportunity to propose additional items and to raise preliminary matters pertaining to the conference procedures — for example, an inquiry as to the anticipated duration of the conference. The Judge should not, however, permit discussion of matters pertaining to the substance or procedure of the case at this time.
16 Appendix 3 is a sample appearance sheet.
537-921 O - 74 - 2
4. Participation The Judge should rule immediately on requests to intervene or to participate on some other basis. Even if such rulings can only be made by the agency, the Judge can frequently make a tentative ruling for purposes of the conference, subject to later agency action. Where appropriate, he should inform those present of their rights to participate in the conference and in the entire proceeding.
5. Scope of the Proceeding - Normally, the first matter on the agenda is a discussion of the ultimate issues. These may already have been marked out, but the Judge, agency staff, and other parties may submit proposals for modification, clarification, or limitation. After discussion, the Judge should rule on these matters and the conference should continue on that basis. (If the agency should later disagree, a further conference may be necessary.) After ruling on the basic issues, subsidiary issues may be isolated and clarified in similar fashion.
6. Obtaining Evidentiary Information — Parties, including agency counsel, may request other parties to submit information, including specially prepared studies. Disposing of such requests and arranging for the preparation and exchange of the proposed evidence are frequently the most difficult parts of the conference. The Judge, as well as the agency staff, even though well-trained, experienced, and familiar with the industry, may not be able to determine whether objections to furnishing information are induced by the heavy burden of preparing it, or by the party's disinclination to produce it. Moreover, even counsel for the party from whom the material is sought may not actually know the value of the requested information or how much work it will take to get it.
As difficult as these problems may be, it is preferable to face them at the prehearing conference. Otherwise they are merely delayed to be dealt with in connection with depositions, interrogatories, and subpoenas that might have been avoided. It is usually quicker, easier, and more equitable to decide these questions after a full and enlightened discussion at the conference than it is on motions to quash subpoenas or to strike particular material after it has been supplied. Moreover, if the decisions are made at the conference there is time to modify them without causing a delay in the proceeding if later investigation shows, for example, that some requested material is not obtainable or cannot be assembled in the form requested.
In cases where a party is determined to resist all efforts to obtain information which may be adverse to his interest, the Judge must decide what will be compelled under the discovery procedures discussed below. The Judge should prune the requests for information to the greatest extent possible consistent with obtaining sufficient information to decide the issues. Most parties, not excepting agency staff, tend to request the maximum amount of information so that they will have more from which to choose. The course of least resistance is to comply but the cost is dear. The difficult task of striking the trivia at the hearing and sorting out the important facts when deciding the case is compounded if the Judge has to examine voluminous data that should never have been required.
The difficulty in determining at the conference what information should be furnished may be reduced in various ways: (1) some agency rules require that the direct evidence
be filed with the application or petition;" (2) the agency's hearing order may require the parties to prepare and exchange direct, and perhaps rebuttal, evidence before the conference; and (3) the Judge at a preliminary conference may arrange for the exchange of requests for information which, if objected to, will be resolved at a reconvened conference.19 The feasibility and utility of these devices depend on agency rules, the nature of the case, the number of known parties, the extent of divergent interests, and the amount and type of material requested.
7. Exchange of Information and Proposed Evidence — Dates for the exchange of information and proposed evidence should be established with the consent of the parties if possible. The time allowed should of course depend upon the nature of the material sought, the difficulty in preparation, and the complexity of the issues.
Sometimes a party may desire that information or proposed evidence be served on two or more persons in his organization or he may not require some of the material requested. Consequently, the Judge may request each party to state what material he needs, the number of copies, and the names and addresses of the persons to be served. The Judge's secretary may compile this information to be circulated to all parties either as a part of the prehearing conference report or in a separate document.
8. Procedural Rules for the Proceeding — To supplement the relevant statutes, the Administrative Proce
17 See, e.g., CAB, 14 C.F.R. $$ 302.1301-1315, 1401–1415 and FPC, 18 C.F.R. & 154.63 (1972).
18 See, e.g., El Paso Natural Gas Co., Dock. RP 73 – 104 (FPC, Feb. 8, 1974).
19 See, e.g., Council of North Atlantic Shipping Assoc. v. American Mail Lines, Ltd., No. 73–38, Prehearing Procedures and Schedules of John Marshall, Administrative Law Judge (FMC, Sept. 21, 1973).