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ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS

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Title: ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS


1
ASSISTING SELF REPRESENTEDPARTIES IN
ADMINISTRATIVE HEARINGS
  • 2011 AOC Conference Thursday June 9, 2011

2
Context
  • Rise of administrative agency adjudications
  • Common areas where agencies operate
  • Public benefits
  • Licensing
  • Professional discipline
  • Land use
  • Public employees

3
Why are there administrative hearings?
  • Due process (Goldberg v. Kelly)
  • Statutes and regulations

4
 What should happen in administrative process
  • Written notice with enough detail about
    allegations to prepare a defense
  • Opportunity to be heard by neutral decision maker
  • Opportunity to appeal to court (required by
    California Constitution)

5
State Agencies with large numbers of
Self-Represented Parties (SRPs)
  • California Department of Social Services
  • Employment Development Department/California
    Unemployment Insurance Appeals Board
  • Office of Administrative Hearings for child
    support, special education and Regional
    Center/Department of Developmental Services
  • Department of Motor Vehicles
  • State Personnel Board (increasing trend)
  • Workers Compensation (increasing trend)

6
Local agencies with large numbers of SRPs
  • Housing authorities
  • Welfare department (General Assistance)
  • County indigent health care programs

7
Federal Agencies with large numbers of SRPs
  • Social Security Administration
  • Department of Veterans Affairs
  • Immigration

8
Initial steps for the SRP
  • Determine what agency is involved
  • Determine time to appeal
  • Determine time to appeal to keep benefits pending
    hearing
  • Determine process to appeal
  • Make sure agency accepts appeal and client gets
    receipt for filing

9
Requesting hearing
  • Follow directions on notice
  • State issue in general terms (agency action is
    wrong) unless directed otherwise
  • Make special requests on form (interpreter,
    disability accommodation)

10
Preparing for the hearing
  • Gather documents
  • Talk to witnesses (written statement is OK, but
    in person testimony is better)
  • Look at case file (if applicable)
  • Research on legal arguments
  • Get position statement prior to hearing (if
    applicable)

11
Preparation for hearing Investigation
  • Subpoena for documents
  • Subpoena witnesses
  • Employee file (Labor Code 1198.5)

12
Prior to hearing
  • Copies of documents for judge and opposing party
  • Confirm witnesses will attend
  • (optional) prepare written statement
  • Prepare what will say at hearing and what
    witnesses will say

13
Settlement
  • Sometimes can negotiate settlement
  • Not required to take agency offer if do not
    like proposal can say no.

14
If issue is overpayment, SRP needs to know about
potential criminal charges
  • Criminal charges are possible, especially if
    large overpayment (over 10,000)
  • People should not talk to anyone, especially
    police or fraud investigator, about case
  • What is said in hearing can be used against
    person
  • Upside if individual wins, cannot proceed with
    criminal prosecution

15
Initial assessment of SRP
  • Does SRP have any issue with ability to read and
    comprehend written materials?
  • Does SRP have any issue with ability to hear or
    speak?
  • Does SRP have any disability that needs an
    accommodation from the agency?

16
Initial assessment of SRP
  • Is SRP a person with Limited English Proficiency
    (LEP)?
  • Is SRP able to read written materials in native
    language?
  • Is SRP able to write in native language?

17
Initial assessment of SRP
  • If SRP is a person with LEP, or is Deaf or Hard
    of Hearing, or needs an accommodation
  • Help SRP notify agency of need for
  • Qualified interpreter in language of SRP
  • Qualified American Sign Language Interpreter
  • Accommodation for Disability (reading, writing,
    physical disability)

18
Interpreters
  • TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
  • Recipients of federal financial aid (state
    agencies) cannot discriminate on the basis of
    national origin
  • must provide meaningful language access to LEP
    persons
  • cannot engage in intentional discrimination or
    have practices that have a discriminatory intent

19
Department of Justice (DOJ) implementation
  • 2002 DOJ memo to the recipients of federal funds
  • All recipients are required to reduce language
    barriers in order to assure meaningful access to
    benefits and information and,
  • All recipients are required to do individualized
    assessment of need.

20
Recipients individualized assessment
  • Individualized assessment must determine
  • The number of proportion of LEP persons in the
    eligible service population
  • The frequency with which LEP persons have contact
    with the agency or program
  • The nature and importance of the program,
    service, or activity, and
  • the resources available to the recipient of
    federal funds and the costs involved in providing
    language services

21
DOJs recent reminder Language Access Matters
  • DOJ Guidance letter (8/16/2010)
  • EO 13166 Improving Access for Services for
    Persons with Limited English Proficiency(8/2010)

22
SRP should insist on proper translation of
documents
  • Most agencies have Spanish-speaking staff
  • Bilingual staff receive higher pay
  • Ability to speak/read varies
  • Often bilingual staff translate evidentiary
    documents for hearing (paid by the word)
  • Advise SRP to ask interpreter at hearing to check
    translation for accuracy

23
SRP re interpreters
  • Is SRP able to understand the interpreter?
  • Some ALJs will inquire, but many do not
  • If individual cannot understand the interpreter,
    tell the ALJ at the beginning of the hearing on
    the record

24
SRP re Interpreter Part 2
  • Interpreter is required to review file with SRP
    before hearing
  • Interpreter should translate all documents in the
    file, not just identify what the document is
  • If interpreter does not translate the documents,
    even after SRP requests it, SRP should tell the
    ALJ at beginning of hearing, on the record

25
SRP re Interpreter Part 3
  • Agency should provide testing/certification for
    interpreters as a practical matter, cannot do so
    for all languages
  • If interpreter is not certified, ALJ should
    question interpreter to determine how gained
    proficiency in language
  • If ALJ does not inquire, SRP should ask ALJ to
    find out interpreters qualifications

26
SRP re Interpreter Part 4
  • Prepare SRP for potential use of phone
    interpreter and to insist on in person (unless
    SRP has to appear by telephone)
  • Not as effective as in-person assistance
  • Often have no court experience or very limited
  • Cannot review file with SRP in person
  • May delay hearing, so SRP must be willing to wait
    for agency to find qualified interpreter

27
SRP re Interpreters and Phone Hearings
  • If telephone hearing is optional for SRP (i.e.
    agency desire, not SRPs need), ask for in-person
    hearing, but may cause delay
  • If telephone hearing necessary for SRP, ask for
    time to review file over the telephone with
    interpreter prior to hearing
  • SRP should make sure has all documents in file
    (this is true for all telephone hearings)

28
SRP re Quality of Interpretation
  • Qualified interpreter in SRPs native language
    required
  • Interpreter is supposed to interpret exactly what
    judge says and exactly what SRP says
  • Interpreter should not advise SRP how to answer
    or give verbal cue how to answer
  • Interpreter should not explain what judge is
    saying if SRP does not understand, ask the judge

29
Additional tips to prepare SRP for hearingPart 1
  • SRP may call local agency office to ask questions
  • California Unemployment Insurance Appeals Board
    (CUIAB) has a duty ALJ at every office who will
    answer questions staff are not able to answer
  • Explain SRP should know what his or her witnesses
    will say no need to make the other sides case
    case

30
Additional tips to prepare SRP for hearingPart 2
  • Attend the hearing in person or by telephone, not
    by written declaration if two party case sworn
    testimony, subject to cross, generally is more
    persuasive than hearsay evidence
  • Bring 3 copies of all documents, including audio
    tapes and video discs and,
  • Remove hats, caps, chewing gum, and sunglasses,
    unless medically needed, before testifying.

31
Additional tips to prepare SRP for HearingPart 3
  • Refrain from profanity or jokes
  • Wait for the witness to finish the answer before
    asking the next question
  • Wait for the interpreters translation of the
    question asked before giving an answer or asking
    a new question
  • Truthfully answer the question asked and,
  • Be respectful of the other side.

32
Additional tips to prepare SRP for hearingPart 4
  • SRP SHOULD NOT
  • Laugh, sneer, shake the head or gesture after a
    witness answers a question
  • Interrupt, especially the ALJ
  • Rustle papers and,
  • Be intimidated because the other side has a
    lawyer or representative.

33
Additional tips to prepare SRP re hearingPart 5
  • May bring anyone for assistance must be own
    advocate and be persistent while being polite
  • Most ALJs explain issue, applicable law, and
    procedure to SRPs
  • ALJ may actively question SRP and witnesses some
    ALJs do not
  • Witnesses may appear by video, telephone or
    submit sworn or unsworn written statements
    explain significance of hearsay

34
Additional tips to prepare SRP re hearingPart 6
  • Depending on the type of case, hearings at Office
    of Administrative Hearings (OAH) may be more
    formal, and ALJ may not directly question SRP,
    but most do
  • Child support cases at OAH are typically by
    phone, and SRP must request in person hearing
    but will delay case
  • Special education cases are more formal, and
    decisions are lengthy, based on expert testimony

35
Additional tips to prepare SRP re hearingPart 7
  • In certain cases, ALJ will help SRP reframe a
    cross examination question, and permit leading
    questions on direct examination.
  • If medical issue, advise SRP to bring 3 copies of
    all pertinent medical records and test results.
  • If financial issue, or SRP wants waiver of
    overpayment, advise to bring 3 copies of all
    financial documents showing hardship

36
Additional tips to prepare SRP re hearingPart 8
  • Bring 3 copies of all documents, audio recordings
    and video.
  • Make sure cell phone evidence is on a paper, CD,
    or other tangible format ALJ cannot incorporate
    cell phone displays as evidence
  • SRP may have to authenticate exhibit and explain
    that picture is accurate depiction

37
Additional tips to prepare SRP re hearingPart 9
  • Trend is toward ALJ in engaged neutrality with
    SRPs SRP should not get upset if ALJ asks lot of
    questions .
  • SRP is not required to admit incriminating facts
    such as SRP is undocumented, possesses fake
    identification or social security card, or is
    using someone elses social security number

38
Additional tips to prepare SRP re hearingPart 10
  • ALJs may seal hearing and record, even though
    hearings are open to the public and decisions are
    too.
  • SRP must waive confidentiality if testifying
    about drugs and alcohol (or related treatment)

39
Post Hearing Procedures
  • Unemployment, state disability and state tax
    assessment appeals SRP may appeal to appeals
    board with a letter
  • No cost to claimant record is transmitted by
    agency
  • 6 months to file writ in superior court if wants
    further review.

40
Post Hearing Procedures Part 2
  • Office of Administrative Hearings
  • Particular Agency may substitute decision if
    unhappy with ALJ decision
  • SRP then must file a brief in opposition.
  • Final review is writ, filing time shorter than
    writs from CUIAB
  • Check and follow particular agency/department
    writ procedure and time frame a lot of variation

41
Additional Resources for SRPs
  • Additional Resources for SRPs
  • Self Represented Litigation Network
  • A collaborative group of organizations housed at
    the Center for State Courts the working group
    meets monthly to share information and strategies
    re judicial education state codes of judicial
    conduct as they relate to SRLs and SRPs and the
    deficiencies in the recently adopted Model State
    Administrative Procedure Act (MSAPA). Anyone
    interested should contact Richard Zorza,
    Richard_at_Zorza.net.

42
Additional Resources for SRPsPart 2
  • www.selfhelpsupport.org
  • A national source of information on
    self-represented litigation, the site includes
    over 1,000 resources and has 1,400 members. The
    site has a newsletter with updates that goes to
    all members.

43
Additional Resources for LEP SRPsPart 3
  • www.lep.gov
  • Consortium for Language Access in the courts,
    www.ncsc.org/education-and-careers/state
    interpreter-certification.aspx
  • National Association of Judiciary Interpreters
    and Translators, www.najit.org

44
Additional Resources for SRPsPart 4
  • Access to Justice on the World Wide Web An
    annotated bibliography, Edmund J. Gorman, Jr.,
    Public Interest, Public Service, and Professional
    Responsibility (January 9, 2009)
  • Roadmap to Justice, Deborah H. Rhode and Dmitry
    Bam, http//blogs.law.stanford.edu/road
    maptojustice/

45
Law Librarians First Responders to SRPs in
Crisis
  • A day in the life of a legal librarian helping
    the SRP under stress.
  • Attempt to teach SRP skills for dealing with
    legal crisis, deadlines, and give resources
    within the library and outside the library to
    cope with the crisis.
  • Translate what the SRP is trying to do into what
    the SRP realistically can do, without practicing
    law.

46
Law Library Resource
  • Provides public with access to legal information,
    including use of computers for use in SRP cases
  • Provides referrals to organizations that may
    provide legal assistance, as well as assistance
    with basic human needs (food, shelter,
    employment)
  • Handles referrals from Courts and Legal Services

47
SRPs with LEP at the law library
  • SRPs with LEP present unique challenges to the
    Public Law Library
  • Challenge helping any SRP with accessing
    regulations and agency precedent, but SRPs with
    LEP have even greater needs.
  • Lack of interpreters, materials available in
    many, but not, all languages in locale of library

48
Links to Library Resources
  • San Francisco Law Library www.sflawlibrary.org
  • To find a local library http//www.publiclibrary.
    org
  • To find your nearest California Public Law
    Library http//www.publiclibrary.org/find.html
  • To find legal services and LawHelpCalifornia
    http//www.lawhelpcalifornia.org/CA/index.cfm
  • To find LawHelpCaliforniaResourceDirectory,which
    you can select by county http//www.lawhelpcalifor
    nia.org/CA/StateDirectory.cfm/County/20/City/20/
    demoMode/3D201/Language/1/State/20/TextOnly/N/Z
    ipCode/20/LoggedIn/0/directory11/searchesletters/
    bysa
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