Cross-Examination in an Administrative Hearing
This week’s show starts with a friendly Public Service Announcement…. Don’t put your recycling in plastic bags… Thank you. O.K.! Now the topic we are covering this week is Cross-Examination. This is something that has happened recently at an administrative hearing and the decision the Providence superior court has made about it. But first, what is an Administrative hearing? An administrative hearing, it’s sort of like you’re in court, they follow the rules of evidence. They follow the rules of civil procedure to a certain extent, and companies have to be represented by an attorney. If you’re an individual, you can go in prose. So here is a question for you, if you are an individual and you go pro se, can you cross-examine a person or persons? Take a listen as we dig deeper into cross-examination during an administrative hearing. The result might shock you.
Episode Transcript
CLARICE: Hello, everybody. Welcome to Environmentally Speaking.
MARISA: Hi, everybody. I’m Marisa Desautel an environmental attorney.
CLARICE: And I’m Clarice. I’m coming in with questions, topics, and just discussions for the week. To kick us off, Marisa, I’m coming to you with a confession. I have an environmental confession to make and I’m very stressed out about it.
MARISA: Wait. Are we changing the platform from environmental education to naughty environmental education?
CLARICE: Your trash needs to be in a trash bag.
MARISA: Yes.
CLARICE: They won’t accept loose trash.
MARISA: Okay.
CLARICE: I thought recycling was the same way, so I had been putting my recycling in shopping bags.
MARISA: What kind of shopping bags?
CLARICE: Like the kind that you get your groceries in, like the plastic bags, like the ones that people who –
MARISA: Oh, my God.
CLARICE: Yeah. Like the ones that you use for the tiny trash barrels.
MARISA: Yeah. So you’ve created a zero sum game is what you’ve done. You’ve neutralized your recycling efforts by putting the recycling materials in a plastic bag.
CLARICE: Yeah. So in my mind – and this is my reasoning – was you don’t put your loose trash in the trash. Why on earth what I expect them to accept my loose recycling. It must be the same principal. So I had been putting my recycling in bags and it was mortifying. Somebody from waste management came to my house to tell me that I was wrong and I died. I just died inside.
MARISA: Oh, my God.
CLARICE: And the whole time I was explaining I had no idea. I will obviously adjust moving forward and not do this anymore. And in the back of my head I was like I’m in an environmental podcast and I’ve been stopped by the recycling police.
MARISA: The recycling police. You’re on the short list.
CLARICE: I am. They looked in my barrels. Mortified. So I go plalking, but I don’t put it in the right spot apparently.
MARISA: Zero sum game. Well, I appreciate your honesty. I wonder if other folks out there are coming up with similar questions about recycling and other environmental practices.
CLARICE: Yeah.
MARISA: It’s not like there’s a bunch of education available out there for it.
CLARICE: No. I mean, I had no clue and I just figured what do celebrities do when they’re ashamed. They tell their story and say they hope that by sharing their story they can make a difference with other people, so.
MARISA: They also go to really fancy rehab facilities.
CLARICE: Oh, my goodness. Do I get to go to recycling rehab because those look lovely.
MARISA: Yeah.
CLARICE: Oh, I will glady sit in group and go over recycling if I get to hang out by the pool.
MARISA: Hi. I’m Clarice. I don’t know how to recycle.
CLARICE: I put my recycling in plastic bags.
MARISA: Hi, Clarice.
CLARICE: So, yeah, I guess if anybody else thought that it was okay to put your recycling in shopping bags, don’t. They’ll come by. They’ll tell you not to and they will be very upset with you. So I’ve learned.
[0:03:10] MARISA: Thanks for sharing.
CLARICE: And I will do better. And also I’m really happy that this is a podcast and nobody can see my shame face today.
MARISA: Yeah. I can feel your embarrassment.
CLARICE: I was so mortified.
MARISA: Well, on a less entertaining note, the topic that I wanted to talk about today is timely and relevant. We always try to pick something that’s going on in the environmental field or industry during the week and recently there’s been a lot of news about a particular state agency known as the Road Island Coastal Resources Management Counsel –
CLARICE: Yes.
MARISA: — where they handle activities that affect the coast outward to the three nautical mile state territorial limit. And they’ve come under some scrutiny lately because of the way the agency is set up. They have a regular staff and then they have something called the counsel. It’s made up of members that are appointed by the governor and they are the ultimate decision maker. They have the veto power over the staff decisions and they sit as kind of a jury. They hear all the evidence and they make a final decision.
Those final decisions are appealable to the Rhode Island Superior Court and a decision came out recently, April 19th, from the Providence Superior Court called Troyano versus CRMC. Hopefully I’m saying the plaintiff’s last name correctly. And I find the decision to be really interesting because it’s so pertinent to what I practice. And the question that I’ve got for you when I’m done explaining the fact pattern and the holding is how might this decision impact a nonattorney from a participation standpoint. So that’s the question I want you to keep in your mind here.
CLARICE: All right. I’ve got homework. I like it.
MARISA: Don’t forget. Don’t put it in a plastic bag.
[0:05:30] CLARICE: Oh, the stress.
MARISA: So the portion of the decision that I found so interesting has to do with the judge’s discussion of cross-examination in an administrative hearing context. When you’re in an administrative hearing, it’s sort of like you’re in court. They follow the rules of evidence. They follow the rules of civil procedure to a certain extent and companies have to be represented by an attorney. If you’re an vinyl you can go in pro se. In this case the plaintiff and the person appealing the decision was pro se, an individual not represented by counsel.
He made a request of the counsel that he be allowed an opportunity to cross-examine any member of the public that was providing testimony as an objector to his project and the counsel said, in essence, you can question anyone that speaks tonight after they’re all done speaking, so save your questions and save your comments. You can essentially rebut what any member of the public has to say tonight. And in my experience that’s how it goes. It makes sense. It seems efficient. You have groups of people stand up and object or speak in favor of a particular project and then the applicant has an opportunity to respond to all of those comments. Does that make sense so far? .
CLARICE: Yeah. Yeah. Absolutely. Like you said, it’s like court. If they’re deciding on an issue, you’ll hear people for it and against it and it’s a pretty – I mean, the layout is a pretty organized format.
MARISA: Yeah. Well, the Superior Court in this case held that the counsel was wrong to use that process and instead they should have allowed the project’s applicant the right to actually cross-examine people that were standing up and objecting to his project one by one, not just, okay, all the objectors have spoken and now I’m going to rebut what they said, but an opportunity to cross-examine someone who’s not represented by counsel and is just up there speaking as a layperson either in support or against a particular project. The question that popped into my head immediately was no one’s going to speak up at hearings anymore.
CLARICE: Yeah.
MARISA: A member of the public is going to be cross-examined. People have issues with public speaking to begin with, so I was surprised by the decision for sure and concerned how it might play out in other contexts, you know, municipal hearings, zoning hearings, planning hearings, town counsel meetings as well as CRMC and agencies like it like DEM.
CLARICE: I’m grimacing. I’m going to be very candid. Normally I try to not have an opinion and just talk about the issue. I don’t like this.
MARISA: Yeah. Yeah.
CLARICE: Yeah. It’s for the exact reasons that you said. I mean, having people come and get involved in these sort of issues unless it’s directly happening to your neighborhood or your yard or some place that directly impacts your life, people don’t normally come in to speak on these issues.
[0:09:15] MARISA: No.
CLARICE: And then even for the folks who it’s directly affecting, it’s an even smaller pool of people who come forward and say, hey, these are my concerns. This is why I love it. This is why I hate it. So to add in that extra layer that they know at the end of this an attorney might stand up and cross-examine them, I could completely understand why people aren’t going to want to go.
MARISA: Yeah.
CLARICE: I mean, public speaking alone can be really daunting. That’s understandable. But I think there’s still this idea that being cross-examined by an attorney is adversarial in nature. That’s sort of the point of it. An attorney is not gunning for you out of a personal reason. It’s part of what they’re hired to do and, you know, what they’re trying to show. But people do have an expectation that this is a conflict situation. Nobody signs up for that.
MARISA: Yeah.
CLARICE: Oh, no.
MARISA: I know. I worry that it’s going to have a chilling effect on people speaking their opinions.
CLARICE: Yeah. I can’t see a lot of people who don’t have the benefit of having their own counsel represent them be able to go up there and do that with confidence.
MARISA: Yeah.
CLARICE: Oh, no.
MARISA: So that decision just came out. It remains to be seen what the practical implication of the holding will have, but presumably if I’m an attorney representing a private applicant and I’m in front of a zoning board, for example, and a member of the public stands up and says, I’m the neighbor adjacent to this project, I’m concerned about noise, I’m concerned about dust, I’m concerned about pollution, then I can cross-examine the person that says that and I’m not pulling punches just because they’re not represented by an attorney. And then who objects? During cross-examination –
CLARICE: They’re unrepresented.
MARISA: — they’re unrepresented.
CLARICE: They might not know what to object about.
MARISA: But you can’t object. I object to that question. I’m not answering it. Like that’s not how that works.
CLARICE: Well, I don’t know. Amber Heard’s attorney object to himself, so who knows what’s happening. But I just – yeah. I think – and, again, I mean, for those of you who don’t know specifically about cross-examination there are two types of questioning that can happen in court. You’ve got your direct examination and your cross-examination. The way I always like to think about it is direct examination is you’re letting whoever’s on the stand tell the story. They’re going to be questions by their own counsel or somebody who’s on their side and it’s very conversational and very open.
[0:12:12] MARISA: Yeah.
CLARICE: Cross-exam is the opposite. You’re getting questioned by somebody who’s not on your side and they’re there to either prove their own point or disprove your point. Again, nothing personal. That’s part of what the job of the attorney is. It’s not like they’re gunning for you as an individual, but it is meant to be combative in some nature, polite or as polite as you can. So for people who don’t understand this process it could be exceptionally jarring. And then to have people who are unrepresented who just want to say, hey, I’ve got questions and concerns, they’re probably not going to show up.
MARISA: It’s a full-court press that you didn’t know about.
CLARICE: Yeah.
MARISA: So that’s it. I just wanted to bring that up this week. Decision just came out. I’ll keep you posted on what the effects are.
CLARICE: And I think it’s important to note, too, this isn’t saying that attorneys now have the opportunity to voice their opposition. Previously they were given space to refute and rebut testimony heard. So us not enjoying this new form of cross-examination doesn’t mean we’re against the other side having their rebuts heard. It’s specifically this format.
MARISA: Yeah. I’m concerned about the chilling effects I think it’s going to have.
CLARICE: Yeah. I agree. Well, good news, guys. We’re back to our regularly scheduled bummer content. If you’re having a good day, take these 15 minutes just to feel terrible. Let us know. Let us know what you guys think. Send in your thoughts. We’re on Twitter, Facebook, Instagram. You could write to us at Help@DesautelESQ.com. Let us know if you had an issue going on that was going to directly affect you would you speak up knowing there could be a cross-exam? I’d love to hear some thoughts on that.
MARISA: Yeah. I would, too.
CLARICE: I think we’re predicting the majority of people would say probably not, but if you would let us know. Tell us why. We’re open and hopeful to hear from you, so hit us up on those medias. Thank you guys for listening. Do not recycle your plastic bags. Do not feel my shame. And have a good weekend.
MARISA: See ya.
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