Last Update: 8/6/12 (Transmittal I-2-86)
A. Opening Statement
The Administrative Law Judge (ALJ) will open the hearing with a brief statement explaining how the hearing will be conducted, the procedural history of the case, and the issues involved. In supplemental hearings, the ALJ need only identify the case, state the purpose of the supplemental hearing, and describe the issue(s) to be decided.
Generally, the content and format of the opening statement are within the discretion of the ALJ.
B. Advisement of the Right to Representation
If the claimant is unrepresented, the ALJ should ensure on the record that the claimant has been properly advised of the right to representation and that the claimant is capable of making an informed choice about representation.
The ALJ is not required to recite specific questions regarding the right to representation or the claimant's capacity to make an informed choice about representation. However, below are examples of questions the ALJ could ask an unrepresented claimant on the record:
Did you receive the hearing acknowledgement letter and its enclosure(s)?
Do you understand the information contained in that letter, specifically concerning representation?
If the unrepresented claimant did not receive the hearing acknowledgement letter and its enclosure(s), the ALJ will provide the claimant with a copy and the opportunity to read the letter. The ALJ will enter into the record the acknowledgement letter and all enclosure(s) sent to the unrepresented claimant.
The ALJ will answer any questions the claimant may have including explaining the claimant's options regarding representation, as outlined in the acknowledgement letter.
If the claimant is illiterate, the ALJ must ensure that the claimant is aware of his or her options for representation. Specifically, the ALJ will explain the availability of both free legal services and contingency representation as well as access to organizations that assist individuals in obtaining representation. See I-2-0-20 C., Unrepresented Claimant.
Once the ALJ has determined that the claimant is capable of making an informed choice, he or she will either secure on the record the claimant's decision concerning representation, or obtain from the claimant a written waiver of the claimant's right to representation, which will be marked as an exhibit. See I-2-6-98, Waiver of Representation.
C. Postponement of the Hearing to Obtain Representation
If the claimant desires to postpone the hearing to obtain a representative, and it is the first such request, the ALJ should grant the requested postponement. In such instance, the ALJ should:
go on the record and advise the claimant of the right to be represented;
provide the claimant with information about organizations that provide free legal services;
advise the claimant to notify the hearing office if representation is obtained;
advise the claimant that:
the hearing will be postponed and rescheduled;
normally only one postponement is permitted to obtain representation, unless good cause is shown requiring additional postponement;
if he or she appears at the rescheduled hearing without a representative, the hearing will proceed with the unrepresented claimant unless good cause is shown; and
obtain an “Acknowledgement of Postponement in Order to Obtain Representative” from the claimant (see sample provided at I-2-6-97) with his or her witnessed signature. The acknowledgement is marked as an Exhibit and a copy of the acknowledgement should be provided to the claimant.
D. Claimant Requests to Make a Private Recording of the Hearing
If the claimant or representative requests to make a private recording of the hearing, and the ALJ decides to grant the request, the ALJ's opening statement should include language such as the following:
You asked if you may make a private recording of the proceedings of this hearing. This request is granted for the purpose of providing information for your personal use and convenience in pursuing this claim. However, if your recording interferes with the orderly conduct of the hearing, I shall withdraw this permission. The hearing proceedings are confidential, and unauthorized use or disclosure of this information is prohibited by law, except as expressly permitted by the Privacy Act and the Freedom of Information Act. I also remind you that the recording I am making will be the official verbatim record of this proceeding.
E. Procedural Rulings
The ALJ should rule on the record regarding any prehearing requests or motions of the claimant or representative, i.e., requests for postponement (20 CFR §§ 404.936, 416.1436), disqualification of the ALJ (20 CFR §§ 404.940, 416.1440) and subpoenas (20 CFR §§ 404.950(d), 416.1450(d).