The

Janet Napolitano
Governor

OAH

Cliff J. Vanell
Director

Vol. 26
January 2003
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

Questioning Witnesses -Reality is the Record
Director’s note: OAH is committed to fairness and making hearings
accessible to all. This article is part of a series of informational articles to
educate the public and parties who appear before us about the hearing
process and how to better present their cases. The following article may be
found at OAH’s website at www.azoah.com along with all previous articles
published in the OAH Newsletter.

The adversarial hearing or trial process is the currently established
legal means (arbitration and mediation aside), for resolving disputes
between parties, including disputes with State agencies The process
is often referred to as the search for the truth and is presumed to be
more reliable than trial by combat or the dunking stool. Whether the
process actually finds what it is seeking, depends on how a case is
presented.
Disputes involve a multitude of factual and legal matters. Unless
disputed matters involve only legal issues (such as the application of
the law or the interpretation of a contract), the factual picture of the
events surrounding any legal controversy are generally crucial to a
case. These facts may be lost or distorted since the past, unless
videotaped, is rarely completely recaptured. Physical facts, whether
documents or other tangible items, are not as transitory as events and
are, therefore, more susceptible to certainty. Nevertheless, events
leading to (as well as tangible matters which may be part of) a dispute
depend on the presentation of the testimony of persons having some
knowledge about relevant events and conditions.
The facts surrounding any controversy will vary somewhat with each
person having any experience with or exposure to those facts. It is
generally accepted that persons may observe a neutral phenomenon
but subjectively experience different responses, feelings or recollections about the event. It is even more likely that persons who are
participants in a situation where they have a personal interest
(emotional, financial, or psychological, etc.) will interpret the events
differently from participants with conflicting or no interests. These
differences often become greater over time. Truth may become very
subjective based on selective recollection.
However, in any shared experience, absent delusion or fabrication, the
The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies

Allen Reed, Administrative Law Judge
facts cannot be completely altered. The devil (the dispute or
disagreement) will be in the details. The ultimate truth in
contested matters brought on for hearing before the OAH is
based on the record established at the hearing. If a party fails
to prepare or present competent evidence (usually in the form of
witness testimony), the record may well reflect a reality which is
seriously distorted from the actual state of affairs, but in the
mind of the Administrative Law Judge (ALJ), the record will
nevertheless constitute the reality of what happened, or of what
presently is, for the purpose of making a recommendation in the
case.
Although all possibilities connected with the questioning of
witnesses cannot be anticipated or discussed in this article,
there are some general rules which may prove to be instructive.
The following is not all inclusive but should present a framework
for the efficient presentation of your case through testimonial
evidence. In order to competently question a witness you need
to organize your entire case.
Know the issues! Know the specific matter(s) the hearing is
about. Identify the disputed matters. One cannot ask relevant
and probative questions without fully understanding the issue(s).
Know the law! Know how the law applies to each issue and how
the law applies to the entire case.
Prioritize the issues! Differentiate between what is important
and what is not. Too often parties expend unnecessary time
and energy in trying to make a point about inconsequential
matters.
Prioritize your facts! Once you know the issues and the law,
you should be able determine what facts are important, what
you need to prove (establish as true), and how you are going to
prove it.

Questioning Witnesses
(continued page 2)

began in 1945 with California. The current states or cities having adopted the
model, with year of inception are: Arizona (1996), California (1961), Colorado
(1976), Florida (1974), Georgia (1995), Chicago (1997), Iowa (1986), Kansas (1998),
Louisiana (1996), Maine (1992), Maryland (1990), Massachusetts (1974), Michigan
(1996), Minnesota (1976), Missouri (1965), New Jersey (1979), New York City (1979),
North Carolina (1986), North Dakota (1991), Oregon (1999), South Carolina (1994),
South Dakota (1994), Tennessee (1975), Texas (1991), Washington D.C. (1999);
Washington (1981), Wisconsin (1978) and Wyoming (1987).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.

2nd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
96.93% of all Administrative Law Judge decisions acted upon by
the agencies.* ALJ decisions, including orders, were accepted
without modification in 93.82% of all Administrative Law Judge
decisions acted upon by the agencies. 77.77% of all agency
modification was of the order only (i.e. penalty assessed).
Appeals to Superior Court:
There were 50 appeals filed in Superior Court.
Rehearings:
The rehearing rate was .32%, defined as rehearings scheduled
(3) over hearings concluded (942).**
Completion Rate:
The completion rate was 102.93%, defined as cases completed
(1615) over new cases filed (1569).
Continuance:
The average length of a first time continuance based on a
sample of cases (first hearing setting and first continuance both
occurred in the 2nd quarter) was 38 days. The frequency of
continuance, defined as the number of continuances granted
(220) over the total number of cases first scheduled (1542),
expressed as a percent, was 14.26%. The ratio of first settings
(1578) to continued settings on the calendar (238) was 1 to
0.15.

Because of the relaxed rules of
evidence in the administrative setting
(see A.R.S. §41-1092.07), evidence
must only be substantial, reliable and
probative. The questioning of a
witness in an administrative hearing is
less demanding from a legal perspective and more demanding from a
practical perspective. You won’t be
constrained by technical rules of
evidence but you will have to be
aware of the potential for a broader
range of evidence which may be
admitted and considered with the
potential for extraneous or irrelevant
information being placed into the
record. In the latter instance, the ALJ
will often request that the evidence be
made relevant to the issues. In the
administrative hearing, issues
concerning evidence are usually more
practical (how much weight certain
evidence should receive) rather than
legal (why evidence should or should
not be admitted).

Factors to consider in questioning a
witness are numerous. Among them
are the type of case. A Seriously
Mentally Ill-Behavioral Health case will
differ from a Mobile Home Landlord Tenant case. Who are the parties? A
Dispositions:
disciplinary case where an agency is
Hearings conducted: 58.3%; vacated prior to hearing: 38.7%;
represented by an Assistant Attorney
hearings withdrawn by the agency: 3.0%.
General (such as a case arising out of
the Arizona Medical Board where the
Contrary Recommendations and Agency Response:
Board is attempting to suspend or
20% of Administrative Law Judge decisions were contrary to the
revoke a physician’s license) will differ
original agency action where the agency took a position.
from cases involving private parties
Agency acceptance of contrary Administrative Law Judge
having the primary interest (such as
decisions was 72.0%
the typical Registrar of Contractor
(ROC) case where a homeowner is
*1.10% of Administrative Law Judge decisions were certified as final by the OAH
complaining about work performed by
due to agency inaction or rendered moot by settlement.
** Cases which were vacated are not included.
a contractor). Are attorneys involved
in the case? Whether none, one or all
the parties are represented by
attorneys, will affect the questioning
of witnesses. What is the subject matter of
Questioning Witnesses
the case? Who has the burden of proof?
Are you trying to establish the truth of a fact
continued from page 1
or refute the other side? Who is the
Know the witness! What does the witness know
witness? What is his or her knowledge
about the facts and how can you best get that
about the case? Keep in mind that if you
information into the record. Put your witnesses at
are the person who has the most personal
ease. A nervous witness generally will not testify
knowledge about the case, you are your
as effectively as one who is organized and
most important witness. Technical and
natural.
esoteric areas will require a certain type of
testimony, possibly from an expert.
Knowledge of the issues, law, facts, complexity of
Participants in a hearing will present their
the subject matter and the ability of the witness to
respective versions of the facts based on
communicate are some of the things that must
their subjective recall and that of their
be considered when determining what questions
witnesses. Presumably, there will be
to ask and how to ask questions of the witness.
conformity between the testimony by a
Remember, you are presenting your story. It
party’s witness and a party’s position on the
should generally consist of a logical and
facts. There may be exceptions to this
connected sequence of events with a beginning,
since ROC inspectors are not necessarily
middle and an end. Questions and answers
party witnesses.
should convey information in a clear, succinct,
non confusing manner. Although an ALJ has
One of the first rules of the trial arena is,
experience in listening and separating the “wheat
“Never ask a question to which you don’t
from the chaff”, he or she cannot hear what is not
know the answer.” Since the administrative
said or what is unnecessarily convoluted.
setting has limited discovery tools, the

page 2

answers which will be given by adverse
witnesses very often cannot be known until a
question is asked at hearing, although one
should always have some understanding of the
other side’s case. For administrative purposes,
the rule can be modified to state, “Never ask
your own witness a question to which you don’t
know the answer.”
This does not mean you may cause your
witness to testify less than honestly or truthfully.
Nevertheless, proper preparation prior to
hearing to determine what the witness knows or
does not know and how the witness will testify
about those elements which are crucial to your
case is essential for the effective presentation of
your case. Try to strike a balance between no
preparation and over preparation of a witness.
Oftentimes when it comes to credibility, there
may be little difference between a witness who
is too rehearsed causing answers to sound
artificial and a witness who is unsure and
disorganized in giving answers. Both may result
in credibility problems.
Is narrative testimony better than short question
and answer? Generally, long narrative
questions and answers are not favored. This is
because narratives tend to ramble, may be
convoluted and confusing, and often contain
irrelevant information. When possible, it is best
to keep questions to your witnesses simple,
direct and succinct in order that the answers are
similar. Do not ask multiple questions as a
single question because they are confusing and
require multiple answers. Make sure the
witness lets you finish a question before an
answer is given. Make sure you let the witness
finish an answer before you ask the next
question.
When you question the witness begin with the
obvious. What is their name, relationship to the
parties, basis for knowledge concerning the
matters at issue, and basis or foundation for any
special knowledge. This preliminary questioning
will set a more comfortable mood for you and
the witness as well as laying a foundation for
who the witness is and what the witness knows.
Don’t dwell on it, but address any evident
weaknesses in your witness before the other
side does (potential bias, memory, lack of direct
knowledge, etc.)
Make sure your questions are properly
organized so you can convey the message you
are trying to convey in an orderly and logical
manner. Don’t jump from one issue to another
and then back again.
Leading questions may be asked of hostile or
adverse witnesses. The leading question
usually has the answer contained in the
question. If properly phrased, it should only
require a “yes” or “no” answer, and can make
very direct evidentiary points, limiting possible
unfavorable evidence which could detract from
those points.
Do not lose your composure or get angry if an
adverse witness does not answer the way you
want. Impeachment of witnesses may be

Agency Response to Administrative Law Judge Decisions October 1 - December 31, 2002

2500

Administrative Law Judge
decision moot due to settlement
0.13%

Agency rejects the
Administrative Law Judge
decision
2.15%

2110

Administrative Law Judge
decision certified as final upon
agency inaction
1.10%

2000

Agency amends order only
3.07%

cases

1500

Agency amends findings of
facts/conclusions of law only
0.88%

1000

500

20

70

49

Agency amends order
only

Agency rejects the
Administrative Law
Judge decision

3

25

Administrative Law
Judge decision moot
due to settlement

Administrative Law
Judge decision
certified as final upon
agency inaction

0
Agency amends
findings of
facts/conclusions of
law only

accomplished any number of ways. Impeachment simply means that the
truthfulness or accuracy of a person’s testimony is suspect for any number
of reasons. These can range from a prior felony conviction, or personal
bias, or a person’s ability to have perceived or recall the events they are
testifying about. Does the witness know what she claims to know? How
does the witness know? If you cannot impeach the witness, don’t continue
questioning on the same issue because this often results in the adverse
testimony making an even stronger impression than would otherwise be the
case. If a witness is testifying based on what someone else told them
(generally hearsay), don’t spend time attacking the credibility of the witness
but rather point out the potential unreliability of the hearsay and its source.

Agency accepts without
modification
92.67%

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, October 1 - December 31, 2002
60.00
50.00

45.48

51.80

40.00
Days

Agency accepts
without modification

30.00
19.08

20.00

15.37

1.71

AAA
CC

8.89

10.00

Keep in mind that the Law, especially in the administrative setting, does not
need to be mysterious. The Law has little utility in the abstract, save as an
intellectual exercise and can only be given substance by its application as a
tool for the benefit of people. Your presentation of evidence through the
questioning of witnesses needs to follow practical rules based on organization, preparation, reason, and plain common sense.

11.72

2.90

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing to ALJ Decision to Agency
ALJ Decision
Action

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing. A typical
example would be the denial of a license. A party is entitled to a hearing before the OAH before the action
becomes final. Contested Cases involve actions yet to be determined by an agency. An example would be
proposed discipline on a professional license with the possibility of suspension or revocation. Parties are entitled
to a hearing before the OAH prior to the agency acting.

1569 Cases Filed October 1, 2002 - December 31, 2002
Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Bd. Occup’l Therapy
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology

2nd Q

FY 2003

1
0
0
2
3
0
0
670
1
9
0
2
0
13
0
24
1
3
0
0
4

3
0
0
6
52
0
0
1531
1
11
0
3
1
23
1
57
1
3
0
0
4

2nd Q FY 2003

Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Board
Naturopathic
Nursing
Nursing Care Admin
Occupation Therapy
Osteopathic
Parks
Peace Ofc. Standards

page 3

3
0
69
3
41
0
1
71
39
4
12
1
0
6
0
12
0
0
0
0
2

5
0
137
5
71
0
3
151
66
11
30
1
0
11
1
24
0
0
0
0
5

2nd Q FY 2003

Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Veterinary Board
Water Qual. App. Bd.
Water Resources
Weights and Measures

0
0
0
0
0
2
0
0
11
0
475
17
11
0
4
2
0
0
4
14

5
0
0
0
2
8
0
0
12
0
862
37
30
1
8
2
1
0
7
20

Evaluations of OAH Services
Unrepresented Responses 2nd Quarter

All Responses 2nd Quarter

300

120

250

100

Excellent

200

80

Good

150

60

Average

100

Poor

40

0

0

Average
Poor

Q

Q

Good

ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
st
io
n
Q
3
ue
st
io
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Q
4
ue
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io
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Q
5
ue
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io
n
Q
6
ue
st
io
n
Q
7
ue
st
io
n
Q
8
ue
st
io
n
9

20

ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
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Q
3
ue
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Q
4
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5
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Q
6
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Q
7
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Q
8
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n
9

50

Excellent

Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space

Note: The four major groups of those who responded are:
represented private party; unrepresented private party; counsel
for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing and the evaluations
are not disclosed to the ALJ involved.

7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously

Office of Administrative Hearings
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Phoenix, Arizona 85007

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