Presenting
Your Case - Before the Hearing
Revised March 2007
Before the Hearing |
Before the Hearing
- Organizing Your Case
- Develop a Theme
The first step in preparing for a hearing is to think about the central theme (or themes) of your case. One way of developing a theme is to try to reduce your argument into one or two simple sentences. In a discipline case, a grievant’s theme might be that the discipline she received was too harsh compared to that received by other employees for like conduct. Similarly, an agency’s theme in the same case might be that the grievant admitted having committed the misconduct and that other employees who had committed the same misconduct had all received the same discipline.
One of the benefits of developing a theme is that it enables you to distinguish what information is critical to your case and what information is irrelevant. This, in turn, allows you to focus your presentation on the necessary evidence, and to present your case clearly and succinctly.
- Decide What Facts You Must Establish
Next, determine what facts you need to establish. To do this, you need to understand what you will need to prove at hearing. In claims involving disciplinary actions and dismissals for unsatisfactory performance, the agency must show by a preponderance of the evidence that its action was warranted and appropriate under the circumstances. To decide if the agency has met its burden in a disciplinary case, the hearing officer will consider whether:
- the grievant engaged in the behavior described in the written notice;
- the behavior constituted misconduct;
- the agency’s discipline was consistent with law and policy; and, if the answer to 1, 2, and 3 is “yes,”
- there were mitigating circumstances justifying a reduction or removal of the disciplinary action and if so, whether aggravating circumstances exist that would overcome any mitigating circumstances.
In all other types of claims, the grievant must prove his or her claim (for example, that the agency misapplied a policy or applied it unfairly, gave the grievant an arbitrary and capricious performance evaluation, or discriminated or retaliated against the grievant) by a preponderance of the evidence.
- Identify the Order in Which You Will Present Your Facts
Once you decide what facts you need to establish, you should outline the order in which you plan to present those facts. You should also identify which witnesses and exhibits you will use to establish the facts.
- Analyze the Other Side’s Case
You should also think about the other side’s case. Outline what facts the other party will need to prove and how they are likely to prove those facts. Then determine how you will rebut, discredit or minimize those facts.
- Make an Objective Assessment of your Case
In organizing your case, you should also objectively assess the case’s strengths and weaknesses. If you conclude that the case’s weaknesses outweigh its strengths, you may want to consider settlement.
- Develop a Theme
- Prehearing Conference
- Scheduling
The prehearing conference is scheduled by the hearing officer assigned to the case. Prehearing conferences are conducted by telephone.
- Subjects Covered
At the prehearing conference, the hearing officer will establish the date, time and location of the hearing. In addition, he or she may explain the hearing process; identify with the parties what factual matters are in dispute and whether the parties can agree in advance on certain facts (such agreements are referred to as “stipulations”); and advise the parties of the deadline for exchanging witness lists and copies of exhibits (in most cases, this deadline will be four workdays prior to the hearing). The hearing officer may also rule on any preliminary procedural and evidentiary requests, and, if necessary, identify and clarify which issues have been qualified for hearing (in a multi-issue case) and what policy or law is applicable to the grievant’s claim.
- Orders for Production of Documents and Witnesses
A party may ask that the hearing officer issue orders for the production of documents from the other party and for the appearance of witnesses at the hearing. It is important to understand, however, that the hearing officer cannot compel a witness to testify.
You may have witnesses who are willing to appear without a hearing officer’s order. Even in these situations, you should consider asking the hearing officer for an order. If a willing witness cannot appear at the last minute, the hearing officer will be more likely to postpone or reschedule the hearing if you have asked for an order than if you have not: if you have not previously asked for an order that a witness appear, the hearing officer may wonder whether the witness is actually critical to your ability to present your side.
If you are seeking documents from the other side, you should make every effort to obtain those documents well in advance of hearing. If the other side refuses or fails to produce documents to you in a timely manner, you should ask the hearing officer to take appropriate action.
- Scheduling
- Hearing Preparation
- Prepare Your Witnesses
- Talk with Your Witnesses: Find Out What They Know
- Develop a Question Outline and Practice with Your Witnesses
Once you have listened to the witnesses tell their stories in their own words, you should develop a question outline for each witness. After you have prepared the outline, go over the questions with the witness. Advise witnesses to listen carefully to your questions and answer ONLY what you ask – they need to focus their testimony on relevant facts. You should also make sure your witnesses know that they can ask for questions to be repeated or rephrased if they don’t understand the question as initially asked.
Formulating questions
The way you formulate your questions will depend on the strengths and weaknesses of your witnesses. You will want to maintain more control over witnesses who are not comfortable public speakers or who tend to give excessively long or unfocused answers, so you will ask them narrow or closed questions to guide them along. Narrow questions define the subject of the response with more precision: “What did the park look like at the July 4 th picnic?” Closed questions call for a specific response: “What color was the picnic blanket?”
You should ask more open-ended questions of witnesses who are able to testify effectively without much prompting. Open-ended questions are those that call for a narrative response: “What did you see on July 4, 2004 ?” As a general rule, the less prompting a witness needs, the more credible his or her testimony will be considered by the hearing officer.
Leading questions are permitted only on cross-examination. Leading questions suggest a particular response—“The picnic blanket was blue, wasn’t it?”
- Make Sure Your Witnesses Are Ready
There are a number of other things that you should review with your witnesses to prepare them for the hearing. First, make sure your witnesses are familiar with any exhibits that they will be asked to identify at the hearing. Also make sure your witnesses know the date, time and location of the hearing, and give them directions to the hearing site if necessary.
- Prepare and Submit Your Witness List
Once you determine which witnesses you want to testify, you should prepare a list of witness names. Generally speaking, unless otherwise ordered by the hearing officer, this list must be received by the hearing officer and the opposing party no later than four workdays prior to the hearing.
- Be Prepared for the Unexpected
Sometimes witnesses will change their stories or deny statements previously made. If this happens, you should be prepared to reassess your case.
As soon as possible after the grievance is qualified for hearing, you should speak with your witnesses and find out what information they have and how they can help you. When you speak with them, you shouldn’t tell them what to say, but you should let them know what you understand their testimony would establish at hearing.
- Prepare Your Exhibits
- Identify All Necessary Exhibits
As part of your earlier preparation, you should have identified the exhibits you will need to use at hearing and the general order in which you plan to introduce the exhibits. The agency’s exhibits must include, at a minimum, the Grievance Form A, completed through the third resolution step, and all attachments and resolution step responses, as well as copies of any relevant state or agency policies. In a case involving disciplinary action, the agency must also include the Written Notice, with attachments, and the Standards of Conduct.
The grievant is not required to include these items, as they are being provided by the agency. Both the agency and the grievant must include copies of any other relevant documents they intend to use at hearing.
- Submit Your Exhibits to the Hearing Officer and Opposing Party
You will need to submit a copy of each of your exhibits to the hearing officer and to the opposing party. If your exhibits exceed forty pages, you will need to submit these copies to the hearing officer and the opposing party in a loose-leaf notebook binder, with each exhibit separated by a numbered tab divider. The exhibits should be ordered in the same order you expect to use them at hearing. You may indicate in the lower right corner of each copy whether it is an “agency exhibit” or a “grievant exhibit,” but you should not put exhibit numbers on the documents themselves.
Generally speaking, unless the hearing officer orders otherwise, your exhibit packages must be received by the hearing officer and opposing representative no later than four workdays prior to the hearing.
- Prepare a Set of Exhibits for Your Use at Hearing
In addition to preparing the exhibit packages for the hearing officer and the opposing party, you should also prepare a set of exhibits for your own use at the hearing. One of the simplest ways to organize exhibits for hearing is to create your own notebook binder of exhibits, with each exhibit separated by a numbered tab divider in the order in which you expect to use the exhibits.
While you may certainly use your own original documents at hearing, you may find it useful to use copies of documents in your exhibit notebook, so that you can highlight relevant portions of documents and make notes on the documents themselves of important issues or questions.
- Identify All Necessary Exhibits
- Use the Best Evidence Available
In deciding what witnesses and exhibits to use, you should be guided by the principle of presenting the best evidence available. Although the rules of evidence do not apply in grievance hearings and all relevant evidence should be considered by the hearing officer, evidence which is more reliable will be given greater weight by the hearing officer.
For example, it is best to provide evidence through the testimony of an eyewitness, rather than providing second-hand accounts or reports of the incident. A second-hand account of events seen or heard by other people is known as “HEARSAY.” Hearsay is admissible in a grievance hearing, but the testimony of an eyewitness is considered more reliable and given more weight. This is because facts can be distorted as information is passed from person to person.
Similarly, where the content of a document is at issue, it is always better to use the document itself than to have someone testify about the document’s contents.
- Prepare Your Witnesses
A “preponderance of the evidence” means evidence which shows that what is intended to be proved is more likely than not.