Michigan Criminal Defense Lawyer Blog
In Part 5 of this series, we discussed preparing for a License Appeal Hearing. In this sixth part, we’ll move on to examine the actual Hearing, but we’ll tie in a few points about the “prep” session that, in the last section, I noted would be better explained here.
The big day is drawing near. For those who’ve been through the process before, it’s no less intimidating, because their prior attempt didn’t work out too well, and thus, they’re going back to try again. To the person waiting to go in for a License Appeal Hearing, it seems like everything comes down to this. It feels like it’s all on the line…
While it may feel that way, the truth is that the Hearing, while important, is NOT the entirety of a License Appeal. It doesn’t actually “come down to this.” Instead, I try and help my Clients understand that the License Appeal Hearing is just the final step, and one of several such steps, before a decision is made. In this 6th part, we will examine the actual License Hearing, and what a person can expect to encounter, and why, at least if I am their Lawyer, this is really nothing to be nervous about.
As a Driver’s License Restoration Lawyer who has handled hundreds upon hundreds of License Appeal Hearings, and who has appeared in Court, quite literally, almost daily for the last 2 decades, I have to remind myself that while this is really “just another day at the Office” for me, it is a big deal for my Client. The best analogy that comes to mind is getting a root canal. For me, facing such a procedure is a bit intimidating. Will the tooth survive, or will it break apart, necessitating oral surgery and an implant? All kinds of questions whirl about in my head as that kind of “big day” approaches for me.
Yet for my Dentist, this is, in every sense of the word, “just another day at the Office.” He’s not worried, because he has a pretty good handle on what will happen, or at least the range of realistic possible outcomes. He’ll assure me that everything will be fine, and then he’ll begin talking about things like movies, sports, or whatever you might discuss with a co-worker or friend with whom you’re sharing lunch.
Take me out of the Patient chair, put me in the same situation with my Client, and I’ll do the same thing. I know that we’re okay, but not just because I say so. Remember all that stuff back in parts 4 and 5 of this series, where we talked about how the Substance Abuse Evaluation is the foundation of a License Appeal, and that we need to make sure that it’s perfect, or darn close to it, and then we examined how much time I’ll put into helping with the Letters of Support? Well, if we’ve done all that, then by the time we file for the Hearing, we’re already in EXCELLENT SHAPE. The actual Hearing is very important,of course, but much of the path toward winning (or losing) a License Appeal will have been cleared by virtue of the good evidence submitted beforehand.
The Hearing is an opportunity for the Hearing Officer to confirm that the depiction of the person in the Substance Abuse Evaluation, and described in the various Letters of Support, is actually consistent with the person who shows up for the Hearing. If we’ve done our groundwork correctly, then there is really nothing to fear, or be intimidated about when the actual Hearing takes place. Instead, the Client should try to understand that this is a good thing, and an opportunity to do what cannot be done in an Administrative (Appeal by mail) Review. If the Hearing Officer has some questions, this is our opportunity to clarify whatever he or she is concerned about.
And while I certainly know how accurate and true this is, it might help the reader understand better if we examine what actually happens in a Hearing.
When my Client and I arrive for our Hearing (which for me, and anyone who is my Client, means arriving at the Livonia Branch of the DAAD), each of us will check in at the front window. Hearings are set Monday through Friday, every hour, on the hour. This means that Hearings are scheduled for 9 am, 10 am, 11 am, 1 pm, 2 pm, 3 pm, and 4 pm. There are no Hearings set for the half-hour. Each case is blocked off for a one-hour slot.
The Notice of the Hearing not only provides the time, but also adds the word “sharp.” Thus, a person who has a Hearing scheduled for “X” date at 9 am will see the time listed as “9:00 am SHARP.”
Once the Hearing time rolls around, the door to the Hearing Offices will be opened by the Hearing Officer, who will call the name of the person Appealing into the lobby. My Client and I will rise from our chairs in the waiting room, and follow the Hearing Office down the corridor to his or her Hearing Room. We’ll go inside, and shut the door. The Hearing Officer sits up at and in a cubicle that almost resembles a kind of Judge’s Bench, while the Client and I will sit at a long table. Whatever else, the Hearing Room is clearly a Hearing Room, and has a Judicial aura about it.
The Hearing begins with the Hearing Officer announcing the name of the case, the date, time and location, and also informing the parties that the Hearing is being recorded.
The next few steps are “ministerial,” meaning they are more or less housekeeping matters between the Hearing Officer and the Lawyer. Documents are reviewed and marked as exhibits, and then, after a few minutes, the actual Hearing begins. Most Hearing Officers will ask the Client to raise his or her right hand to be sworn.
Then, the Hearing Officer will ask me if I have any opening statement, or remarks. I always do, and not just because I’m a Lawyer, and Lawyers tend to blab. Instead, I believe that a good presentation is not much different than a good piece of writing, except it’s spoken, and the guiding rule to good writing, and good oral argument is:
- Tell your audience what you’re going to be telling them
- Then, tell them
- And finally tell them what you’ve told them
Now, this may seem strange coming from a guy who is in the midst of the 6th installment on a series of articles designed to “overview” the License Restoration process, but when it comes to holding a Hearing Officer or Judge’s attention, the prevailing rule is known as the “kiss” rule: Keep it simple, stupid. Short and sweet is the order of the day as far as opening statements in a License Appeal are concerned. That said, I do think it’s important to tie into the opening statement something unique about the Client and his or her case.
Once my opening statement has been made, I am given the first opportunity to ask questions. My usual concentration of questions remains roughly the same from case to case, but they do take into account the specific facts of the Client’s past.
Taking the reader back to the previous installment of this series (Part 5), at the end, I noted that some of what will appear in this section about Hearings actually takes place in the “prep” process, but that it is more relevant to this discussion about Hearings. Well, we’re at one of those points now.
Part of what I will have prepared my Client for is how the Hearing is conducted, and what I will be doing. After the opening statement is made, I have the first opportunity to ask questions. I will have gone over these with my Client beforehand, and while they might vary from case to case, a large part of what I will be attempting to accomplish with my questions is easing the Client into the process by asking some fairly easy, soft questions. I want to relax the Client, and help them segue calmly into the Hearing. By asking easy questions, the answers to which are helpful in proving our case, their nerves will steady, and they will be far more at ease once I am done, and the Hearing Officer begins asking his or her questions.
The Client will have been prepped about the open-ended nature of my questions, so that they don’t have to worry about coming up with the “right” answer, but will instead have a guided opportunity to begin telling the story of their transformation from drinker to non-drinker. They will, in essence, be given the first opportunity to tell the story of their Recovery.
Once I have finished with my questions, I’ll turn the floor over to the Hearing Officer. He or she will ask their questions, some of which will be the “general” questions that any Hearing Officer will ask, while others will be questions of unique interest to the particular Hearing Officer deciding the case, some of which will depend upon the facts of the person’s Recovery Story. Often, this amounts to one set of questions for those who go to AA, and another set of questions for those who have not attended, or who no longer attend AA.
Next, I get to re-question my Client, and clear up anything that I think need to be addressed, or to focus on anything that I feel should be expanded upon.
Then, the Hearing Officer can ask another round of questions.
After that, I get another go.
While this “back and forth” can, theoretically, last for an hour, in practice, it usually amounts to no more than 2 sets of questions from me, and 2 sets from the Hearing Officer. Usually, the Hearing Officer wraps up his or her questioning the first time, and I have the only follow-up.
I will also have prepped my Client for what I’ll be doing after I’ve finished with my first set of questions, and it is important. I tell my Clients that my role changes once the Hearing Officer takes over, and that I turn into a sort of lifeguard, watching out for them. Specifically, I will begin taking notes.
First, I will be listening to the questions they are asked, and the answers they provide. Knowing their case, I can tell if their answer is not “right,” or creates the wrong impression, or leaves something out. I will note this things that so that when it is my turn to reexamine (re-question) them, I can come back and clear things up, or fill them out, or otherwise make sure the right impression is made.
I point out that inherent in my doing this, in “watching their back,” so to speak, is that they don’t have to over-think or worry about their answer too much. I tell them to just go ahead and answer the question as they think it is being asked. If they miss something, I’ll catch it. They don’t have to get all caught up in over-analyzing the question and their answer. If they do “goof,” I’ll come back and fix that.
Beyond that, however, I tell my Client that I will be writing down some good things, too, and maybe far more of those than anything that needs clarification or “fixing.”
Thus, I may note that the Client seems to be very straightforward and honest. Maybe the Client said something that almost seemed to work against them, but I will point out that the Client is being completely open and honest, and not trying to “sanitize” their story.
I will likely jot down a few key words the Client uses in answering the Hearing Officer’s questions.
Once the all the questioning has ended, I have an opportunity to make a “closing argument,” wherein I will summarize some of the stronger points made in the Hearing, and will address any other areas of concern that may have arisen.
And in almost every case I can recall, I will write down, word-for-word, an answer or two that the Client gives in response to the Hearing Officer, and will repeat that line during my closing argument to support the our case.
Once my closing argument has been made, the Hearing ends.
In any Appeal that I handle, the Client should and will know that they have a real, live and involved Lawyer there helping them, and not just some “suit” that smiles, but does nothing, while the Hearing proceeds. I have heard all too many times from Clients that a previous Lawyer (who obviously lost the Appeal) just sat there and “did nothing.” I can only wonder…
I take an active role in the Hearing, from the very moment it begins to having, quite literally, the very last word.
Yet none of this matters if the Appeal has not been properly prepared from the very beginning. This kind of involvement can only have an effect if I have been part of every step, from the initial preparation for the Substance Abuse Evaluation to the revision of the Letters of Support, right up to the preparation of the Client for the Hearing, before the particular Hearing Officer to whom the case has been assigned.
It is not uncommon for me to get a call from someone who has a Hearing scheduled, and then decides they want to go in with a Lawyer. As a matter of course, I decline Representation in ANY case where I wasn’t involved from the very first step. Being helpful at the Hearing necessarily involves having been helpful from the get-go, and knowing and having been a part of every step in the development of the Appeal.
Besides, most do-it-yourself Appeals lose, so getting involved with a case that someone else (and particularly a case where anyone OTHER than a real, bona-fide License Restoration Lawyer did the work) developed is, at least statistically speaking, a losing proposition. Besides that, the truth is, I don’t want to be embarrassed as all kinds of evidentiary shortcomings are revealed and the Hearing Officer looks at me, wondering, “what the hell did Randa do here?”
Normally, Hearings last from between 35 to 45 minutes. As they are scheduled every hour, on the hour, they are limited to no more than an hour. Few come close to eating up more than 45 minutes.
A big part of my Hearing practice is that I NEVER call any witnesses. Witnesses are a liability. Any help a witness could potentially provided can be put in a Letter of Support.
However, Letters cannot be asked any questions, cannot be “tripped up,” don’t make mistakes, get nervous, or otherwise cause any of the problems that witnesses can. In fact, when I hear that a previous Lawyer called a witness, I pretty much know he or she is not a particularly experienced License Restoration Attorney.
Let me be clear on this point: Absolutely any “help” that a witness could provide can be included in the Letters of Support. Live witnesses ONLY bring potential trouble. Considering my win rate (nearly 99%), I know my methods work.
Yet, time and time again, I read the losing decisions that new Clients bring in, and see how the testimony of a witness that came along with the intention of helping wound up having the exact opposite effect
And I honestly think that the Hearing Officers appreciate the fact that I don’t traipse people in and out of their Hearing Rooms to provide information that could have more conveniently been provided in the Letters of Support. This makes the process more efficient, and less time-consuming for them, all the while making it more manageable and successful for me.
If there’s one theme, and indeed, one word, we’ve used over and over again in this series, it’s “preparation.” Proper preparation is the key. By the time you sit in the audience of any play, the thing will have been rehearsed countless times. When the curtain rises, the actors are just doing in front of the audience what they’ve done a million times in rehearsal. If they don’t know their lines by Showtime, then something is very wrong.
The same holds true in a License Appeal. None of what happens at the Hearing should come as a surprise. The Client should know what to expect.
In the final analysis, the Hearing is really an opportunity for the Client to tell their story. When the Appeal is based upon a real story of recovery, and a person has made the transition from drinker to non-drinker, then there’s really little to worry about. It may seem scary at first, but, in practice, if a person is telling the truth about their Recovery, and if they’ve been properly prepared, it’s really not all that bad.
In Part 7, we’ll wrap up our overview of the License Appeal Process, and examine such things as how long it takes to find out if you’ve won or lost, what kind of License (or Clearance) is granted, how the mandatory ignition interlock works, and to whom it applies, and answer a number of other “housekeeping” questions about License Appeals.