Tuesday, August 24, 2010

LICENSE DENIAL OR DISCIPLINE? NO. 2 of the TOP TEN ESSENTIAL TASKS TO DO NOW

(NOTE: License Advocates Law Group practices administrative law throughout the State of California and this BLOG deals mainly with issues pertaining to occupational licensees in California, a point we are careful to make plain in our posts. This post, however, is not state-specific. The information set forth here is applicable to professional and occupational licensees in most U.S. jurisdictions.)

After decades of practice in the field of administrative law, the partners of License Advocates Law Group have seen, time after time, that every licensing defense case can be strengthened by some very straightforward and do-able actions by the licensee even after denial of a license or after disciplinary charges have been brought by the State. Over the next few weeks, this blog will identify, explain and discuss the Top Ten Essential Tasks for Disputing a License Denial or Defending Disciplinary Charges Against the Licensee.  The first installment of this series, Task No. 1, is available in the August archive  of this blog under the title LICENSEES AT RISK FOR REVOCATION/SUSPENSION:  IMPORTANT TASKS TO DO NOW THAT WILL STRENGTHEN YOUR DEFENSE OF YOUR LICENSE. This post discusses Task No. 2.

No. 2. Compile a comprehensive list of potential witnesses. 
If you do this, and do it well, you will save your attorney significant time. That means saving yourself a significant amount of money in attorney's fees. Even more important, you are in a better position to do this task well than your attorney because potential witnesses are drawn from your life, past and present. No one knows the real content of your life better than you. 

First, set up a list or chart that has space for you to add on a rolling basis the following information: type of witness, name, current residence address, current business address, daytime telephone number, e-mail address, date of first contact, dates of follow-up contacts, dates of subpoena issuance, and kind of testimony or evidence the potential witness will provide.

Now, begin with potential business witnesses. Let your mind and your memory roam far and wide; make your list as complete as possible (your attorney will pare it down for reasons of time, location, willingness and other factors later). Think back to the first years of your career. Think about all of these: who did you work with in your first days in your business? Who trained you? Who did you apprentice to? Who supervised you? Who were your co-workers? Your earliest subs? Your earliest customers? Who have you taken classes from? Move your recollections forward in time and add to your list or chart significant people from later years in all of these same categories, working your way up to the present. Who has supervised, inspected, seen your work recently?

It is critical to think carefully through all events that may have led to or contributed to the events at issue in your licensing case and identify all potential witnesses on the facts of  those incidents. These co-workers, supervisors, colleagues, subordinates, clients, customers, and others in similar capacities may have very different experiences or opinions regarding your professional work than the view that your licensing agency is using as a basis for its disciplinary allegations. It is critical to "capture" these favorable witnesses early in the disciplinary process. Their potential beneficial testimony will be highly powerful both at the hearing before an Administrative Law Judge and in pre-hearing settlement negotiations. So be as expansive and over-inclusive as possible in your recollections; include all possible witnesses. Spend a lot of time on this chart, and add to it continuously. The time and effort will absolutely pay off!

After you have a good start on the pool of potential business witnesses, add to your chart or list all potential character witnesses. Again, with your memory roaming from the present as far back as you can, list everyone who might speak well of you, your character, and your reputation. Consider present and former relatives, spouses, adult children, friends, co-workers, employers, neighbors, religious leaders or counselors, psychologists or other mental health professionals, community/club/associational acquaintances (particularly as to any civic or charitable activities), parents of your kids’ friends, teachers, anyone you know. Remember, you are creating the most expansive possible “pool” from which your attorney can cull and select the strongest and most potent witnesses on your behalf.

Finally, add to your list or chart all potentially negative witnesses you can think of. Include everyone with whom you have a present or recent difficulty, or have had any long-standing problem of a serious nature. Anyone you terminated from employment? People you have sued or sued you? Feuding neighbors? A previous job that went south leaving dissatisfied customers, subs, suppliers? Colleagues or co-workers you just couldn't get along with? Don't leave any potentially troubling incidents or witnesses out. It is particularly important to include on the list of negative witnesses, anyone and everyone who may be part of the investigation that has resulted in the licensing agency's case against you.

It will be weeks -- perhaps even months -- between the time you file for a hearing to contest the disciplinary allegations and the date your matter comes up for hearing before the Administrative Law Judge, especially if the State of California continues its present practice of weekly or semi-weekly furloughs of its employees (Administrative Law Judges and the staff that coordinate hearings before them are State employees). So there is ample time and opportunity, while you are waiting for your hearing date, to make the kind of dedicated effort that will result in a comprehensive pool of potential witnesses on your behalf. So assign yourself the task to make every effort -- repeatedly, if necessary -- to track down current addresses, phone numbers and other contact info and to achieve contact with those potential witnesses you can locate.

Yes --for witnesses who you expect will testify favorably for you, you should immediately initiate contact. Tell them candidly the shortest summary version of your licensing dispute. (Don't get into a Q & A discussion -- these conversations are not confidential.) Ask if they would be willing to testify in your behalf. Most will not want to – don't take it personally. Testifying is an unsettling prospect to many people, and can mean lost work time, travel burdens, etc. If a potential witness is unwilling or unable to give in-person testimony, ask if they are willing to submit a letter or affidavit on your behalf setting forth a brief recital of how the witness knows you and the writer's opinion of your character, work, reputation or other relevant issue about you. Include the responses of those you are able to contact in your list/chart.

Over the time that your hearing is pending, you will constantly add information to your witness chart, ultimately conveying to your attorney (1) a list of potential business witnesses who can be called to testify for you at the hearing; (2) a list of potential character witnesses who are willing to give a written statement for use at your hearing; and (3) a list of witnesses who may be called by the State to give evidence against you. From this chart, once complete or nearly so, your attorney will quickly and wisely select the best of the potential witnesses for use at the hearing. Your lawyer will issue subpoenas where necessary to require attendance for testimony, and offer and provide assistance to selected witnesses in preparing written declarations. Your attorney may also conduct advance interviews of negative witnesses which will be valuable to your defense in preparing for cross-examination and settlement discussions.

An adequate witness chart will save 10 – 20 hours of investigative time even in a short and straight-forward case. That translates into hundreds of dollars of your money for attorneys fees. But more importantly -- much more importantly -- a good witness list prepared well in advance of a hearing will make a significantly better case for you. If you are truly committed to the fight to keep your license, and to avoid discipline or income-busting restrictions and conditions, make the commitment to preparation of complete witness lists and stay on task throughout the course.

Tune in in a few days for No. 3 of the Top Ten Essential Tasks for Disputing a License Denial or Defending Against Disciplinary Charges Against the Licensee.

For more information about denials of California licenses, or about discipline against a California occupational license, visit the Website of License Advocates Law Group at http://www.LicenseAdvocates.com or contact any of the partners at License Advocates Law Group at (888)-406-4020. License Advocates Law Group is the only Southern California-based law firm that limits its practice exclusively to the representation of California licensees and license applicants.  License Advocates Law Group is also the only license defense law firm with a former California Administrative Law Judge on staff.

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