I was once asked if I would consider making a presentation to a conference on appropriate (and inappropriate) conduct by Hearing Tribunal members. I readily agreed to consider the request indicating that our Professional Regulatory Group provides one-day training workshops on how to run professional discipline hearings. I was then told that the conference didn’t have a day for the presentation but instead had only one hour available for the presentation. I was challenged to distill the most important advice into a one hour presentation. I knew I wouldn’t have time to address the complex legal issues that often arise in hearings but could provide some pragmatic advice that would be useful for both new and experienced Tribunal members. Hence, I created The Top 10 “Tips and Traps” for Tribunal Member Conduct. While some of the tips may seem like common sense, on many occasions problems arise due to the failure by both new and experienced Hearing Tribunal members to follow the “tips” and thus fall into the corresponding “trap.” Many of these”traps” routinely result in successful Court challenges to Hearing Tribunal decisions. Distilled from my experience as either prosecuting counsel or independent counsel to tribunals and as a trainer of tribunals, here are my “top 10” tips to help you avoid the traps.
1. Hearing Procedures
Trap: Unless you are a very experienced Chair, you may forget the appropriate steps that must be taken in a hearing leading to confusion and procedural unfairness. An unfair or irregular process typically leads to appeals or applications for judicial review.
Tips: Use a script and procedure guide for every hearing. A step by step guide helps keep the hearing on track. Consider sharing the guide with the investigated member and defence counsel. Using a standard guide helps build confidence in the Hearing Tribunal process and can also assist in raising the confidence of defence counsel in the fairness of the process. A hearing procedure guide is also very useful for helping guide unrepresented investigated members through the process.
2. Hearing Tribunal Member Attentiveness
Trap: Let’s face it. Discipline hearings contain both periods of high drama and excitement and periods of tedium. Sometimes the attention of Hearing Tribunal members may begin to wane. The eyes of an individual Hearing Tribunal member may begin to droop followed by the periodic nodding of the head. Sound unlikely? On the contrary there certainly have been Court challenges to tribunal decisions on the basis that one of the members appeared to be sleeping for part of the hearing! Such conduct undermines confidence in the proceedings and is an embarrassment to the College and the individual.
Tips: Put yourself in the shoes of the investigated member. What conclusions will they draw from your appearance? Do you appear bored, disinterested, or drowsy? Or do you appear interested and alert understanding the importance and seriousness of the proceeding? Pay attention. If you feel yourself getting drowsy, ask the Chair for an adjournment and get a coffee or go for a walk.
3. Keeping Track of the Evidence
Trap: Some Hearing Tribunal members listen to the witnesses without making any notes. The trap is that our memories are short. Sometimes discipline hearings can span many days and if there are adjournments in the middle of a hearing, there is often a delay of months before the hearing resumes due to scheduling challenges. A Hearing Tribunal member who does not have a good recollection of the evidence will not be able to make a satisfactory contribution during caucus meetings. Plus Hearing Tribunal members who do not make any notes on the important evidence may become overwhelmed with the amount of evidence from witnesses and documents as the Hearing Tribunal attempts to sort out what is important from what is not.
Tips: Even if a Court reporter is present, do take notes of the important parts of the evidence. You are not attempting to create a verbatim record but in your notes you should highlight the evidence from witnesses and the documents you consider important. Many experienced adjudicators use a “split page” technique drawing a line down the middle of their page. On the left they summarize the important evidence as witnesses testify and, if they want to later ask a question of clarification, they make a note on the right side of the page across from the entry. When the testimony of the witness is completed the Tribunal member can quickly check the questions he or she wanted to ask and determine if the question had been answered later in the testimony. Using a “split page” technique for your notes will assist in asking relevant and important questions. Having the important parts of each witness’ testimony highlighted in your notes will also assist in having a robust and thoughtful caucus session at the end of the hearing. The Chair can ask each Hearing Tribunal member what evidence they thought to be important for each witness and the Hearing Tribunal member will have this information available at their finger-tips.
4. Questions by Hearing Tribunal Members
Trap: Discipline decisions are routinely overturned by the Courts on the basis that questions by the Hearing Tribunal Members were inappropriate. The questions might be too aggressive, might suggest that the Hearing Tribunal member’s mind was made up or the question might not be focused on the allegations. Sometimes Hearing Tribunal members ask so many questions it is as if they were prosecuting the case.
Tips: Many inexperienced Hearing Tribunal Members feel intimidated about asking questions. They are afraid that they may make a mistake and ask an inappropriate question. If a Tribunal member is uncertain whether a question is appropriate, they should slip a note to the Chair asking for a brief caucus meeting to discuss the proposed question. Some Tribunals decide to follow a procedure where they caucus and discuss all possible questions among themselves before asking the questions. If you follow the 5 key rules with respect to questions by hearing tribunal members, you will avoid most problems:
1) Keep your questions focused on the allegations. A discipline hearing is not an excuse for a broad-ranging review of a professional’s practice. Relevance is determined by the scope of the allegations.
2) Stay neutral. Tribunal members must be careful with the phrasing of their questions. You can and should ask tough questions if they are necessary but keep the questions neutral in tone seeking clarification. Do not engage in cross-examination style questions. Do not ask questions in way that might suggest that your mind is made up.
3) Do not take over running the case. Do not “descend into the arena” as a combatant.
4) In general, wait until the examination, cross-examination, and re-examination are complete before asking questions since many of the questions you wanted to ask will have been asked by legal counsel by the end of the process. Experienced adjudicators may choose not to follow this suggestion but it is a good practice for adjudicators with less experience.
5) Provide legal counsel the opportunity to ask questions arising from Tribunal member questions.
5. Meeting Spaces for Participants
Trap: Discipline hearings may take place in the relatively informal spaces of College boardrooms or hotel meeting rooms. The informality of the space tends to lead to much more intermingling of participants with Tribunal members than would be common in the Court system, for example, with respect to Judges. If the “prosecution team” has coffee or lunch with the Hearing Tribunal to the exclusion of the defence or is perceived to be communicating separately with the Hearing Tribunal members, a reasonable apprehension of bias may be created.
Tips: In order to minimize this risk ensure that there are separate meeting spaces for the Hearing Tribunal, the prosecution, and the investigated member and their counselthat can be used for meetings, coffee, and lunches.
6. Tribunal Member Demeanour
Trap: Over the course of many hearings Tribunal members may become familiar with College staff and legal counsel who are part of the “prosecution team” or with members of the “defense team”. Tribunal members may start acting in a familiar way with the participants they know asking about social engagements or their family and using their first name rather than their formal name. Tribunal members may treat other participants who are not known to them with reserve. Such conduct is routinely used to challenge Hearing Tribunal decisions based on allegations of a reasonable apprehension of bias.
Tips: Tribunal members must not only be impartial and unbiased but must also ensure that they appear that way. In other words, would the way you act cause a reasonable observer to question whether you will be even-handed and unbiased? Remember that the scrutiny by the investigated member of Tribunal members will be enhanced due to the multiple roles the College plays in conducting investigations, referring matters to a hearing, appointing the Hearing Tribunal members, and conducting the prosecution. Appropriate separation of function is maintained but this may not be understood by the investigated member who will simply focus on how things look in the hearing room. So, do not act too familiar with either the prosecution or the defence. Maintain a reserved demeanor. Acting too friendly or familiar can create a reasonable apprehension of bias.
7. Maintaining Control of the Hearing
Trap: Sometimes it seems to Hearing Tribunal members that the lawyers are running the hearing and the non-legally trained Hearing Tribunal members are just “along for the ride.” This loss of control creates problems with process and may cause the hearing to veer in unexpected directions.
Tips: The Tribunal Chair must remember that he or she is “chairing” the hearing. The Chair needs to be polite but firm with the Tribunal making decisions about process after giving both sides an opportunity for input. The Chairperson cannot let the hearing get out of his or her control. Some Chairpersons go too far the other way in an attempt to show counsel “who is boss.” The Chairperson’s desired demeanour is “firm but fair” with no doubt about who is actually in control. If important questions arise during the hearing about the appropriate procedure to follow, the Hearing Tribunal Chair should seek submissions from the parties and then recess and discuss in caucus to benefit from the views of the entire Hearing Tribunal. Try to instill an air of dignity and gravitas. Do remember that you control the pace of the hearing – not the prosecution and not the defence. But at the same time seek their input on the need for breaks and the required length of breaks.
8. Handling Objections
Trap: When there is an objection at a hearing, argument can sometimes go back and forth between legal counsel many times. We call this the “ping-pong” effect as the points bounce back and forth across the “net” over and over again. Unrestrained argument can, at times, become quite heated due to the stress and strain of a hearing and unrestrained argument can waste precious hearing time.
Tips: Do not allow legal counsel to engage in unrestrained argument. Always follow the “rule of 3”. If there is an objection by legal counsel always follow the following steps. One: the objecting counsel states the reason for their objection and makes argument. Two: the other counsel is given an opportunity to respond. Three: the counsel making the objection has an opportunity to reply to the other counsel. The Chair must retain control of the hearing and insist that the “rule of 3” be followed.
9. Interaction with Witnesses
Trap: Given typical locations for discipline hearings such as College offices or hotel meeting rooms, there are significant opportunities for interaction between Tribunal members and witnesses. It is not uncommon for the investigated member or other witnesses to try to engage Tribunal members in discussion. Tribunal members will not want to appear rude so may engage in conversation with witnesses during a break. Investigated members or other witnesses may be trying to establish a rapport with the Tribunal member. Two potential problems arise. First, other participants will see you speaking to the witness and will not know what is being discussed. Second, investigated members and witnesses may try to steer small-talk towards the subject-matter of the hearing which cannot be discussed.
Tips: Do avoid small-talk with the witnesses or the investigated member during breaks. If you are approached just politely disengage as quickly as possible and go back to join the Hearing Tribunal. An appropriate amount of separation will be easier to achieve if there are separate meeting rooms for the participants during breaks.
10. The Role of Independent Legal Counsel to the Hearing Tribunal
Trap: Independent legal counsel can provide invaluable assistance to a Hearing Tribunal. However, the proper role of independent legal counsel must be understood and respected to protect the integrity of the process. If independent legal counsel begins to act like they are a member of the Hearing Tribunal, then problems arise. There have been numerous Court challenges where Tribunal decisions were overturned because, for example, independent legal counsel took over the running of the hearing, acted aggressively with one of the parties, made the rulings in the hearing, and in fact made the decision for the Hearing Tribunal.
Tips: Independent legal counsel is not part of the Hearing Tribunal and is not a decision-maker. Having the individual sit apart from the Hearing Tribunal reinforces the proper role of independent legal counsel. Independent legal counsel provides advice to the Tribunal on legal and procedural issues, which the Tribunal is free to accept or reject. After receiving advice from independent legal counsel, the Hearing Tribunal must still rule on the issue. Prior to ruling, provide the parties the opportunity to comment on the advice being given by independent legal counsel. Do not let it appear that independent legal counsel is issuing the rulings that are the preserve of the Hearing Tribunal. Do not encourage or allow independent legal counsel to take over the running of the case.
Members of the profession who are prepared to serve as Hearing Tribunal members provide an incredibly valuable service to the profession and, most importantly, to the public. By following these “Top 10” common-sense tips, Tribunal members will ensure that their conduct during hearings remains above reproach freeing them to focus on the “peer review” process that is the core of our system of our professional discipline system.