|November 3, 2008|
Information for Witnesses
NOTICE: Generally, the Administrative Review Board, Benefits Review Board and Employees' Compensation Appeals Board base their decisions only on evidence considered in the initial hearing; thus witnesses do not testify at the appellate phase of a DOL proceeding.
Proceedings before the Office of Administrative Law Judges (OALJ) are much like a trial court except that there is no jury. Witnesses often appear to give testimony on matters within their personal knowledge, either at a deposition, at a hearing before an ALJ, or both.
Witnesses may appear voluntarily or they may be compelled to attend by subpoena or court order. Where a witness fails to comply with a subpoena or refuses to testify, the party adversely affected may, where authorized by statute or by law, apply to the appropriate district court for enforcement of the subpoena. 29 C.F.R. §§ 18.24(d). A person who wishes to move to quash or limit a subpoena should file a motion with the presiding ALJ within ten days of receipt of a subpoena but no later than the date of the hearing. Information on the subpoena process can be found at the OALJ Web site.
Prior to the hearing, parties to the litigation engage in discovery, which may include obtaining the sworn testimony of the opposing party, a witness, or an expert intended to be called at the hearing by the opposition. The taking of such testimony is called a deposition. Depositions are used to prepare for the hearing or may be used at the hearing either to contradict (impeach) or refresh the memory of the witness. Depositions are also sometimes used to preserve and introduce the testimony of witness who will not be available at the hearing.
The use of deposition evidence in OALJ hearing is governed by 29 C.F.R. § 18.22-23, which are similar to Rule 32 of the Federal Rules of Civil Procedure. Under those rules, the deposition of any witness may be taken at any stage of the proceeding at reasonable times. Depositions may be taken by oral examination or upon written interrogatories before any person having power to administer oaths. The party taking the deposition of a witness must give adequate notice. The rules provide that during the taking of a deposition, a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, oppression of a deponent or party or improper questions propounded. The objecting party or deponent must immediately move the administrative law judge for a ruling on his or her objections to the deposition conduct or proceedings. In practice, however, ALJs will expect parties to work out disagreements in discovery among themselves and only request assistance from the ALJ in exceptional circumstances.
Generally, ALJs will require parties to the litigation to file a statement prior to the date of the hearing listing all of their anticipated witnesses. 29 C.F.R. § 18.7(b)(4). Before testifying, witnesses are required to declare, by oath or affirmation, that they will testify truthfully. 29 C.F.R. § 18.603. Testimony is recorded by a court reporter, and the transcript of hearing becomes part of the record in the case. Hearings are open the public, and witnesses therefore testify publicly, except in unusual circumstances. 29 C.F.R. § 18.43(a); see also 29 C.F.R. § 2.15 (protection of witnesses where a hearing is being covered audiovisually). Witnesses who are compelled to testify in a proceeding in response to a subpoena may be accompanied, represented, and advised by counsel or other representative. 29 C.F.R. § 18.34(e). Witnesses are entitled to purchase a transcript of their testimony. Id.
Witnesses are subject to both direct and cross-examination. 29 C.F.R. § 18.34(a); in addition, the presiding ALJ may call witnesses and/or ask questions of witnesses. 20 C.F.R. § 702.340; 29 C.F.R. §§ 18.29(a)(2), 18.614. The ALJ has the discretion to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. 29 C.F.R. § 18.611(a). In some cases, the ALJ may order witnesses to wait outside the hearing room until called so that they cannot hear the testimony of other witnesses. 29 C.F.R. § 18.615. If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying, or before testifying, the ALJ may require the witness to show the writing to the adverse party and be cross-examined about the writing. 29 C.F.R. § 18.612.
Fees and Expenses General Rules
The OALJ Rules of Practice and Procedure provide at 29 C.F.R. § 18.24(a):
A witness, other than a witness for the Federal Government, may not be required to attend a deposition or hearing unless the mileage and witness fee applicable to witnesses in courts of the United States for each date of attendance is paid in advance of the date of the proceeding.
See also 5 U.S.C. § 503. Some statutes or regulations governing particular types of cases may have similar provisions concerning witness fees and expenses. See, e.g., 33 U.S.C. § 924; 20 C.F.R. § 702.340(b) (longshore cases). The reference in 29 C.F.R. § 18.24(a) to mileage and witness fees applicable to witnesses in the courts of the United States means the same mileage and fees as imposed in federal courts. For guidance, see 28 U.S.C. § 1821 and GSA mileage rates. Failure to make advance payment of the fees renders the subpoena invalid. CF & I Steel Corp. v. Mitsui & Co. (USA), Inc., 713 F.2d 494 (9th Cir. 1983).
The rules and procedures applicable to the use of expert witnesses in OALJ hearings is beyond the scope of this introduction to DOL adjudications. As a general matter, if scientific, technical, or other specialized knowledge will assist the judge, a witness qualified as an expert may testify and render an opinion. 29 C.F.R. § 18.702. The specialized knowledge provision allows a skilled expert such as a banker, plumber, carpenter, etc., to be qualified as an expert witness. It is the burden of the proponent to establish the expertise of the witness. Whether the witness is sufficiently qualified as an expert is decided by the judge. 29 C.F.R. § 18.104.
The general OALJ Rules of Evidence pertaining to expert witnesses are found at 29 C.F.R. §§ 18.701-18.706. In most OALJ hearings, these rules only provide guidance and are not mandatory in their application. The use of expert witness testimony, however, is subject to special rules and decisional law developed under distinct types of cases. For more detail about the use of expert witnesses in OALJ hearings, see, e.g., Judges' Benchbook: Longshore and Harbor Workers' Compensation Act, Topic 24, Witnesses (USDOL/OALJ 2002) (applying Daubert to Longshore Proceedings, etc.); Judges' Benchbook of the Black Lung Benefits Act, Chapter 4, Limitations on Admission of Evidence, Section III, Witness Testimony (USDOL/OALJ 2003) (use of expert testimony in black lung hearings).