Presenting
Your Case - The Grievance Hearing
Revised March 2007
The Grievance Hearing |
- Hearing Chronology
- Who Goes First?
In cases that involve disciplinary actions, the agency goes first. In all other cases the grievant goes first. The hearing will begin with first one side, and then the other side, making an opening statement. Both sides will then take turns presenting evidence to support their positions. Finally, each side will have a chance to make a closing statement.
For example, in a case where a Group II notice is being challenged, the agency would goes first in presenting its opening statement. Then the grievant would present his or her opening statement. After opening statements, the hearing would proceed as follows (in other types of grievances the order would simply be reversed and the grievant would go first):
- The Agency's Case
- Agency's First Witness
- The agency asks the witness questions (this is referred to as “direct examination”).
- The grievant asks the witness questions (this is referred to as “cross examination”).
- The agency asks the witness additional questions to clarify any matters covered during “cross examination” (this is referred to as “redirect examination”).
- The hearing officer may also ask questions of witnesses at any time.
- Agency's Subsequent Witnesses
The process used for the agency's first witness is repeated for the agency's subsequent witnesses.
- Agency's First Witness
- The Grievant's Case
- The Grievant's First Witness
- The grievant asks the witness questions.
- The agency asks the witness questions.
- The grievant asks the witness additional questions to clarify matters covered during “cross examination.”
- The Grievant's Subsequent Witnesses
The same process is repeated for the grievant's subsequent witnesses.
- The Grievant's First Witness
- The Agency's Rebuttal
After the grievant completes his or her case, the agency may present any additional witnesses who need to testify because of new information that the grievant presented through his or her witnesses (these are referred to as “rebuttal witnesses”).
The order of rebuttal testimony is as follows:
- The agency asks the witness questions.
- The grievant asks the witness questions.
- The agency asks the witness additional questions to clarify any matters covered during “cross examination.”
- Closing Statements
After both sides have finished presenting their evidence, the hearing officer will give each side an opportunity to make closing statements. In this example, because the agency has the burden of proof, it goes first in making its closing statement. After the agency finishes its statement, the grievant will have an opportunity to make his or her closing statement.
- The Agency's Case
- Who Goes First?
- OPENING STATEMENT
- Purpose
The opening statement is your first opportunity to persuade the hearing officer to believe your “theory of the case”—in other words, your theme. The opening statement is your chance to tell what happened from your perspective. It is also your opportunity to tell the hearing officer what evidence he or she will hear (or in some cases will not hear) and to put these pieces of evidence together into the picture you want the hearing officer to see. You may waive making an opening statement.
- Elements
You should begin your opening statement by identifying yourself and the issue or issues qualified for hearing.
After you have gone through these “formalities,” you should begin to create a picture for the hearing officer by describing the kind of work you do and the place in which you do it.
After you have laid this foundation, summarize the facts that are relevant to your case, the evidence you will present to prove those facts, and any relevant policies. Then explain your position, making reference to specific facts. In explaining your position to the hearing officer, remember to use your theme.
It is important to “take the sting out” of weaknesses in your case. Acknowledge weaknesses, and use your opening statement to present those weaknesses in the best possible light. If you do not address and confront these matters it will look like you are trying to hide something.
You should conclude your opening statement by telling the hearing officer how he or she should rule. You should also specify the remedy you seek.
An opening statement is not evidence. You need to prove all the factual assertions you make during your opening statement through the testimony of your witnesses or the exhibits you present at the hearing.
- Presentation Style
- Length
An effective and efficient opening statement should not exceed five minutes.
You should be clear and assertive (but not aggressive or antagonistic). Keep sentence structure simple and direct, and use the active voice (for example, say “the agency issued a Group II Written Notice,” not “a Group II Written Notice was issued by the agency”). Use positive statements, such as “the evidence will show,” and “you will hear testimony that…”
You should be careful not to make assertions you cannot prove, and you should not be argumentative or state personal opinions.
As you give your opening statement, you should maintain eye contact with the hearing officer. Avoid reading your opening statement. To do this, you need to practice repeatedly what you want to say.
- Purpose
- DIRECT EXAMINATION
- What Is Direct Examination?
Direct examination is when a party asks its own witnesses questions to support or prove its case. The purpose of direct examination is to tell your side of the story— the who, what, where, when, how, and why; to advance your theme of the case; and to educate the hearing officer about your case and the demands and requirements of working in your facility.
- Order of Witnesses
In deciding the order in which to present your witnesses, you should consider two factors—the information about which the witness will testify, and the strength of the witness's testimony and presentation. You want the hearing officer to be able to understand the story, so your first witness should generally be the witness whose testimony will tell the hearing officer the most about the who, what, when, how, and why of what happened. Witnesses with more limited testimony should come later, so that the hearing officer can understand the relevance of the testimony. You should also consider, however, the strength of your witnesses' testimony and presentation in deciding witness order. Stronger witnesses should come first or last, as they will be most memorable: Place weak witnesses in the middle.
Prior to the hearing, you should prepare an outline of the questions you want to ask your witnesses. (See the section on preparing witnesses above). At the hearing, you should take a moment to review your outline before you finish questioning your witness to make sure you covered all the testimony you wanted the witness to give.
Once a witness finishes with his or her testimony, the hearing officer may ask you if the witness may be released. At this point you should tell the hearing officer whether you expect to recall the witness to testify at a later time. If you agree to allow the witness to be released and do not indicate that you plan to recall the witness, you will likely be unable to ask the witness to testify again during the hearing.
- Handling Objections
- The rules of evidence do not apply in grievance hearings;
- You are not an attorney (if applicable) and you cannot be expected to respond to a technical objection; and
- By statute, the hearing officer is directed to receive probative evidence (evidence that tends to prove or disprove a fact at issue in the case) and is only authorized to exclude evidence which is irrelevant, immaterial, insubstantial, privileged, or repetitive (Va. Code §2.2-3005(C)(5)).
Although the Grievance Procedure Manual specifically states that the formal rules of evidence do not apply in hearings, this does not mean that you will never be faced with an opposing representative who will object that certain testimony or evidence is inadmissible.
If the other party objects to a question you ask a witness, the witness should not answer the question until the hearing officer decides whether or not the question may be answered. The hearing officer will probably give you an opportunity to respond to the objection before ruling on whether or not to allow the witness to answer. In your response, remind the hearing officer that:
You should also explain to the hearing officer why the testimony is relevant to the grievance and should be allowed.
If the objection is “overruled,” the witness may answer the question. If the objection is “sustained,” the witness is not allowed to answer the question.
If the hearing officer does not allow the witness to testify or limits the scope of the witness's testimony, you may ask to summarize what the witness would have said to preserve it on the record should you choose to challenge the hearing officer's decision or ask for reconsideration. This is referred to as “proffering” testimony for the record.
- What Is Direct Examination?
- CROSS EXAMINATION
- What Is Cross Examination?
Cross examination is when you ask questions to the opposing party's witness either to develop or discredit the prior testimony of the witness. The purpose of cross examination is to discredit an adverse witness by raising doubt about the witness's credibility, perception or memory, or by showing the absence of facts to support your opponent's case. Questions are generally limited to matters the witness testified about on direct examination, although hearing officers do not apply this rule strictly.
- General Principles
You should not feel compelled to cross-examine every witness that testifies for the opposing party. Before deciding to conduct a cross examination, you should consider the importance of the witness, whether the witness damaged your case, and whether you will be able to raise doubts about the witness's credibility or perception.
Use short, simple, “leading” questions during cross examination. Be clear and assertive, but do not berate or belittle the witness. Never ask a question if you do not already know the answer: if you do, you may end up hurting, rather than helping, your case.
Do not ask the witness to repeat prior testimony that damages your case—this will only reinforce what the witness has already said.
Listen carefully to the witness's responses and ask questions accordingly. If you only ask questions from a prepared outline, and do not pay attention to what the witness is saying, you may lose opportunities to discredit the witness's perception or recollection.
Finally, do not ask the “one question too many.” Once the other party's witness has stated a fact favorable to your case, do not ask the witness to state an opinion or draw a conclusion from that fact: the witness may not interpret the events in the same way as you would, and you may lose the benefit of the previous favorable testimony.
- What Is Cross Examination?
- REDIRECT EXAMINATION
- EVIDENCE
- What Is Evidence?
- Standard of Proof
- Types of Evidence
- Real Evidence
- Documentary Evidence
- Testimonial Evidence
- Judicial Notice
- Recorded Evidence
- Methods of Proof
- Direct Evidence
- Circumstantial Evidence
- Presenting Exhibits
- REBUTTAL
- CLOSING STATEMENTS
- Purpose
- Order
The same party who made the first opening statement makes the first closing statement.
- Structure and Content
Prepare a sketch outline of your closing statement prior to the hearing, but be prepared to deviate from the outline to adapt to evidence presented at the hearing.
Limit your remarks to commenting on the evidence admitted during the hearing, and making inferences that can reasonably be drawn from that evidence. Emphasize the positive points in your case, and challenge the weaknesses in the other party's case. If the credibility of witnesses is an issue (for example, if witnesses give conflicting testimony), explain why your witness should be believed, but do not personally vouch for the credibility of your witnesses or state your personal opinion. Do not be abusive or show any personal animosity towards the other party, the other party's attorney, or the witnesses.
A closing statement should be no more than five minutes in length.
Redirect examination is your opportunity to ask additional questions of your own witness after the opposing party cross-examines your witness. Redirect examination is only necessary if you need to ask your witness additional questions to clarify or explain any points made during cross-examination.
Evidence consists of the witness testimony, records, documents, exhibits, tangible objects, etc., that you use to prove your case.
The party with the burden of proof (the party going first in the hearing) must prove his or her case by a “preponderance of the evidence.” A “preponderance of the evidence” means that the evidence presented at the hearing shows that what is sought to be proved is more probable than not—in other words, evidence which is more convincing than the other side's evidence, even if only by a slight amount.
Tangible items, such as a key or a glove, are real evidence.
Written documents, such as a departmental policy, Written Notice, Grievance Form A, are documentary evidence.
Testimonial evidence is witness testimony.
The hearing officer may take judicial notice of certain commonly known or easily ascertainable facts, such as that a certain date was on a weekend.
Tape recordings and videotape are forms of recorded evidence.
Direct evidence tends to prove a fact without the aid of an inference or presumption. Examples of direct evidence include testimony by an eyewitness to a disputed event, a video recording or photograph of a disputed event, and a signed admission statement by an individual who committed an offense.
Circumstantial evidence tends to prove a fact only indirectly—that is, by proving other facts from which an inference or presumption may arise. For example: There are no eyewitnesses, but coworkers testify that every time Nurse Jones works, there are narcotics missing at the end of her shift; only Nurse Jones has the keys to the narcotics cabinet during her shift; patients complain of pain and/or state that they did not receive narcotics which were signed out for them by Nurse Jones; Nurse Jones appears disoriented or exhibits slurred speech. The co-workers' testimony is circumstantial evidence from which the hearing officer can reasonably infer that Nurse Jones stole the narcotics.
A hearing officer may only base his or her decision on facts contained “in the record.” You should make sure that your exhibits are properly “marked” and identified “for the record” so that they can and will be considered by the hearing officer.
Objections to exhibits can be handled in the same manner as objections to the testimony of witnesses. If the other party raises an objection, the hearing officer may decide to receive the exhibit, subject to your being able to establish its relevance through witness testimony.
If the hearing officer refuses to admit a document, you can proffer the exhibit for the record. That is, you may ask the hearing officer to allow you to state for the record what your evidence would have shown, to preserve the issue should you choose to challenge the hearing officer's decision.
Rebuttal is your opportunity to contradict evidence presented by the other party. You may present evidence (witnesses or exhibits) in rebuttal to disprove or rebut new evidence presented by the other side.
Rebuttal should be used sparingly. It should be limited to addressing new matters raised by the other side during the presentation of their case.
Parties should make every effort to be fully prepared for the hearing. This includes anticipating what the other party will use as defenses. If you are surprised by the other side's evidence, you may ask the hearing officer to adjourn the hearing to allow you time to investigate the new evidence. However, the hearing officer will generally only grant such a request where you could not reasonably have anticipated the need for the missing evidence.
The purpose of the closing statement is to bring all of the necessary elements of your case together in a simple, understandable way that shows why your position should be accepted by the hearing officer. It is a summary of your case that applies the relevant policy to the proven facts.