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WITNESS AND EXHIBIT LISTS AND MOTIONS FOR TELEPHONIC HEARINGS
by Dorinda Lang, Administrative Law Judge
Vol. 29, October 2003
Witness and Exhibit Lists
Witness and Exhibit Lists are part of pre-trial discovery and are generally expected of both parties in matters coming before judicial courts. Their purpose is to avoid unfairly surprising the other party during the hearing with evidence they did not know about beforehand. In Arizona, Witness and Exhibit Lists are required by the Rules of Civil Procedure, Rule 26.1, as part of the parties’ duty to promptly disclose information related to the proceeding.Administrative hearings, on the other hand, are exempt from the Rules of Civil Procedure. See Rule 1, Rules of Civil Procedure. Unlike judicial courts, the legislature provides by statute how administrative hearings shall be conducted. The Director of the Office of Administrative Hearings (OAH ) has promulgated various rules to further delineate proper procedures for OAH hearings.
The rules governing OAH hearings do not require Witness and Exhibit Lists. Many attorneys submit them voluntarily as a courtesy to the other party. And it is not uncommon in complicated cases for the Administrative Law Judge to request the parties to submit them in order to effect a more meaningful and efficient hearing. Unless requested by the Administrative Law Judge, however, you are not required to submit one.
If you do submit a Witness and Exhibit List, it is best to be as accurate as possible, naming all the witnesses and documents you intend to produce at hearing. If, after attempting to give as complete notice as you can, a last-minute witness or document presents herself (or itself), the Administrative Law Judge still has the discretion to hear the witness’ testimony and/or admit the document into evidence.
Administrative hearings are not bound by the Judicial Court Rules of Evidence either. All relevant evidence may be admitted. Thus, an Administrative Law Judge may allow a witness to testify even if his or her name was erroneously omitted from a Witness and Exhibit List. In order to avoid unfair surprise to the other party, the Administrative Law Judge still has the option of granting a continuance or a further hearing to allow the other party to prepare a response.
Motions for Telephonic Hearings
Generally, a party wishing to appear at a hearing is expected to appear in person. Because this can be a hardship for some people, an Administrative Law Judge may grant a Motion for Telephonic Hearing, if properly submitted and appropriate. Arizona Administrative Code (A.A.C.) R2-19-114 A.A.C. sets forth the factors taken into account by the Administrative Law Judge. They include whether there is an undue hardship to the party or witness to appear in person, whether telephonic testimony would cause undue prejudice to any party, and, in some cases, an agreement that the proponent pays for any costs incurred thereby. Ordinarily, at OAH, such motions are referred to as Requests of a Party to Appear Telephonically or Requests for a Witness to Testify Telephonically.Although other types of motions may be made orally, motions for telephonic hearings are generally required to be in writing. As such, they must include certain information that is required by rule, and they must be submitted at least 15 days prior to hearing unless good cause exists to submit them later. The requirements for OAH motions are set forth in A.A.C. R2-19-106. The earlier you can submit the motion, the better off you will be. If the motion is denied, you will want to be prepared, either with another witness or by making different arrangements for your preferred witness to appear in person.
If the motion to appear telephonically is approved, you will want to keep the telephone line free at the time of the hearing and be sure that it is unblocked because our state government offices do not give a Caller ID number and this cannot be disabled. Failure to be available for testimony by telephone is essentially the same as a failure to appear in person. Most likely, the hearing will proceed without that party or the witness’ testimony.
If you submit the motion late, you are at risk of having the motion denied shortly before the hearing with little time to make other arrangements. As with any other aspect of your case, you will want to plan ahead to ensure the proper attendance of all parties and witnesses.