The prehearing is a telephone or video meeting with the presiding officer (judge or presiding board member) and all the parties (and their lawyers) to discuss the case, set the hearing schedule, and determine the issues raised by the appeal. The prehearing also is a good time to discuss possible settlement options and to ask questions about the process.
Have a calendar available at the prehearing to note any scheduling problems with the presiding officer.
Proposed Legal Issues and Evidence
Each side will prepare a list of proposed legal issues, witnesses, and exhibits. This document generally is filed and served at least two days before the prehearing and should include the following:
- Names of all the witnesses who might be called to testify at the hearing. Witnesses should either have firsthand information to provide to the board about the facts of the case or special expertise in a technical area related to the case.
- A list and brief description of each exhibit that the board should consider as evidence on behalf of the person appealing.
- A statement of the legal issues in the case.
Templates are available to help prepare the proposed legal issues and preliminary lists of witnesses and exhibits.
Legal issues are the questions that the person appealing wants the board to address at the hearing.
When identifying the legal issues, think broadly about why the decision is being appealed. Then try to identify the specific areas of disagreement between the two sides. These areas of disagreement will form the basis for the legal issues.
Here is an example. A person is appealing a penalty issued by an agency. Why does the penalty seem wrong or unfair?
- Is it because what occurred isn’t believed to be a violation of the law?
- Is it because the person didn’t commit the violation or thinks someone else is responsible?
- Is it because, even after admitting to committing the violation, the person believes the penalty is too large? If so, why is it too much?
This should help identify the specific areas of disagreement with the agency. A legal issue usually is stated as a question about the disagreement–a question that the board will answer “yes” or “no” to after hearing all the relevant facts of the case. It should not include arguments or state the facts of the case.
For the example above, possible legal issues might be the following:
- Did the violation occur as alleged by the agency?
- Can the agency prove who is responsible for the events that caused the violation?
- Is the amount of the penalty reasonable under all the circumstances?
Preparing Exhibits and Witnesses
The board allows electronic exhibits in certain case in the prehearing and hearing. Tell the board by the date identified in the prehearing order if electronic exhibits will be used.
Review the technical requirements provided by the board and contact the office with any concerns well in advance of the hearing.
Motions and Stays
A motion is a request to the board or the presiding officer to do something in the case, after the appeal has started. "Motion" is the name of the document that a party files to ask the board to make a ruling or take some other action in the case. Some common types of motions include the following:
- Motion for Summary Judgment: Asks the board to resolve some or all the issues in the case on the basis of the law and record before the board on the motion. This type of motion can result in some or all of the appeal being resolved before a hearing.
- Motion for Stay: Asks the board to enter an order that will last only until the board has a chance to make a final decision on the appeal.
- Motion for Continuance: Asks the board to postpone a deadline, such as when certain papers must be filed or when the hearing will be held.
Motions that concern relatively minor or procedural matters (such as a request for more time to file a document) are called "non-dispositive" motions.
Motions concerning matters that are central to the case (such as a motion for summary judgment or a motion to dismiss) are called "dispositive" motions because they can "dispose of" (or end), all or part of the appeal.
NOTE: A motion does not start a case. For that, a party must file an appeal or petition as directed by the rules of the board.
An agency order remains in effect unless there is something in writing from the agency or the board that stays (delays or stops) that order. If the agency will not agree to delay the effectiveness of its order, a party can ask the board for a stay of the agency order.
A stay is an action or order that delays or stops the effectiveness of the agency order for a certain amount of time, usually until the appeal is finished.
A stay can be entered either by the agency that issued the order or by the board. (Note: If appealing a penalty, the penalty is automatically stayed during the appeal process.)
A party may request a stay when filing the appeal document or, once the case has been filed, by making a separate request for a stay through a motion. Board rules require specific legal requirements be met to get a stay, so review the board rule about those requirements when preparing the request.
For stays in cases that do not involve forest practices, the board and the other parties, state in writing, why the person requesting the stay is entitled to it and provide the information, documents, and legal arguments for why the board should grant the request.
For stays in a forest practice case (called "temporary suspension or discontinuance"), board rules require specific legal requirements including providing "security" to cover costs and damages from the wrongful imposition of a stay. Review Washington Administrative Code 223-08-087 when preparing the request.
The presiding officer will set a schedule so the other side can respond to the stay request in writing, and the party requesting the stay will have a chance to reply in writing to the response. The board sometimes asks the parties also to present oral arguments on the request. The board then will issue an order on the request for a stay.
Making a Motion
The most common way to make a motion is by filing a written request with the board and serving it on the other parties in the case. The written motion will include what the board is being asked to do. It also should tell the board what laws and reasons support that request. Motions usually include separate written statements by people with personal knowledge of the facts (called "Declarations"). These statements are signed and sworn to be true and correct under penalty of the perjury laws of the State of Washington.
Because both sides must have an opportunity to tell the board their positions about a motion, the party filing a motion must serve a copy of the motion and all supporting paperwork to the board and the other side.
Receiving a Motion
The person receiving a motion has the right to respond in writing to that motion. The prehearing order will include a deadline for filing a response to a motion. The response should include the legal reasons why the board should not grant the motion and a declaration with the important and relevant facts supporting the response.
After a response is filed, the party who filed the motion has a final chance to reply in writing to the points made in the response, by the deadline stated in the prehearing order.
Most motions are decided after the board has received all written materials from both sides. Sometimes the board will ask the parties to appear in person or on a telephone or video conference to explain their positions in an oral argument on the motion.
Deciding on a Motion
After the time has passed for the parties to file their responses to the motion, the board will consider all the arguments and issue a written decision. This usually happens quickly for non-dispositive motions, within a few weeks for simple motions, and longer for complex motions.
A declaration is a sworn statement of facts made under penalty of perjury under the laws of the State of Washington, that accompanies a motion. Not all motions have declarations. A declaration should be in writing, signed by the person making the statement, and dated. The person signing the declaration must have personal knowledge of the facts stated in the declaration. The document does not need to be notarized, but it must include a specific statement that it is true and correct under penalty of perjury. Templates are available to help.
Dismissing a Case
A party who files an appeal may withdraw the appeal. A request to withdraw an appeal must be filed with the board and served on the other parties.
No appeal will be dismissed over objection by the other party without a sound legal reason. Before the board dismisses a case, all parties have an opportunity to tell the board their positions.
Usually, a case is dismissed when one party asks for the dismissal by making a motion. To have the case dismissed, the party must provide a legal and factual basis to show that there is no possible way for the appeal to succeed given the requirements of the law.
Once a party makes a request for dismissal and all sides have had an opportunity to tell the board their positions, the board must issue a written decision. If the board dismisses the case, it will explain the legal reasons in its written order.
If more time is needed to file a response, gather information, or prepare for the hearing itself, the easiest way to get a time extension is to talk with the other party and try to agree on some additional time. If the other party agrees, then tell the presiding officer and request a specific amount of additional time. Usually but not always, more time will be granted when all parties agree.
If the other side is not willing to give additional time, a request for a continuance can be filed or the board contacted to request a conference with the presiding officer. At the conference, the presiding officer will hear from both sides about their reasons. Depending on the situation, the presiding officer may decide whether or not to grant additional time. The presiding officer also may direct the parties to file and respond to a more formal written motion for a continuance.
After the Prehearing
After the prehearing, the presiding officer will send out a prehearing order stating the legal issues in the appeal, all the dates that were established to guide the case to hearing, and other important information about the appeal process.
The process of exchanging information and documents before the hearing is called discovery.
Each side has a right to know what documents and other evidence the other side will present at the hearing. This means each party must be able to see and make copies of documents and other relevant information well before the hearing.
Full and open exchange of information is required of all parties. In other words, there should be no surprises at the hearing. The board expects everyone to cooperate and use the discovery process fairly and in good faith.
Each side must respond timely to requests for information from the other side and cooperate in the scheduling of all efforts related to discovery. Abusive or overly burdensome discovery (for example: lengthy lists of questions on topics not relevant to the case) are not acceptable practices.
Discovery can be done informally among the parties or more formally according to court rules.
When parties work together informally during the discovery process, they do this by telephone, letters, e-mail, fax, or meetings to look over files, photographs, or other documents relevant to the case. To use informal discovery, all parties must agree and cooperate fully.
The presiding officer usually will set a formal discovery schedule during the prehearing. The formal discovery process involves exchanging information and documents only through formal written requests and responses that must comply with certain court rules.
There are specific Civil Rules of Procedure (court rules) that govern how the formal discovery process works. The four most common types of formal discovery are the following:
- Interrogatories are written questions that a party must answer, in writing and under oath, within a specified time frame (see Civil Rules 33).
- Requests for Production of Documents, which is where one party asks another party, in writing, to provide relevant documents (see Civil Rules 34).
- Depositions are proceedings where witnesses answer questions asked by the other side while under oath, and the interview is recorded by a court reporter (see Civil Rules 30-32).
- Requests for Admissions are statements that a party must either admit or deny within a specified time frame (see Civil Rules 36).
All parties have an obligation to first try resolving discovery disputes among themselves, without involving the presiding officer. If unsuccessful, the next step depends on the type of discovery.
- In informal discovery, if the other side stops cooperating, then switch to the formal discovery process by asking the presiding officer to revise the prehearing order to include a formal discovery schedule (if it doesn’t already) or if the discovery deadline has passed.
- In formal discovery, ask the presiding officer to order the other party to respond.
To discuss these issues with the presiding officer and the other side, request a "discovery conference" Civil Rule 26(f). At the discovery conference, the presiding officer will listen to all sides and make a decision about whether, when, or how a party must provide the requested information.