Forum: Protest Hearing Procedures
Inviting parties to call witnesses during validity?
P
Angelo GuarinoCertifications:
- Regional Judge
- Fleet Measurer
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I've asked this question to different experienced judges and I've received a broad range of answers, so this is a "How do you do it?" post. I hope you will share your thoughts and practices.
Appx M (and US Sailing's "Protest Hearing Procedures") clearly put place holders for when witnesses are called.
We are trained to cue the parties to call their witnesses after each party has told their stories, questioned each other, and after questioning by the panel. This is of course during the hearing so the filing passed validity.
But what if there are differing stories from the parties regarding validity and one or both parties have indicated that they intend to call witnesses during the hearing? (I'd note, when witnesses are listed, we have no idea to what they will testify .. and by my experience and amazement ... neither does the party calling them. They are simply listed as witnesses).
Appx M (and US Sailing's "Protest Hearing Procedures") clearly put place holders for when witnesses are called.
We are trained to cue the parties to call their witnesses after each party has told their stories, questioned each other, and after questioning by the panel. This is of course during the hearing so the filing passed validity.
But what if there are differing stories from the parties regarding validity and one or both parties have indicated that they intend to call witnesses during the hearing? (I'd note, when witnesses are listed, we have no idea to what they will testify .. and by my experience and amazement ... neither does the party calling them. They are simply listed as witnesses).
- Does the Chair ask, "Would you like to call your witness?" during validity as we do as a matter of course during the hearing?, or
- Does the Chair sit back silently and wait to see if one of the parties asks for the witness to testify during validity?
I've received guidance on completely opposite sides of the spectrum on this question.
On the one hand, some have guided that it is the party's obligation to call their witness if they think they have information that support their position.
On the other hand, others have guided that rule 63.6 "The protest committee shall take the evidence of the parties present at the hearing and of their witnesses and other evidence it considers necessary." As a Chair if you know there are witnesses in the wing, and you are in the middle of a 'he-said she-said', that the Chair should cue the party and ask "Would you like to call your witnesses?" .. or even just call them without asking the party.
How Rule 63.6 is written ... "The protest committee shall take the evidence .... of their witnesses ... " can be read as a forward leaning position.
I've taken a lighter hand in the past, but I'm thinking maybe not being so shy to bring in witnesses .. or at least cuing the parties .... during validity might be better.
Please share your thoughts. - Ang
Comments
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You may consider R 63.5. It gives guidance to the PC how to obtain evidence to decide if all the filing requirements have been met. Agree with Paul.
Kim
First, any party has the right to call a witness. Second, the protest committee has a right to call witnesses. I think that's it unless I'm confused about your question.
I think it is good practice, as the parties are walking into the room and before they sit down, for the chair to ask if either party intends to call witnesses. If yes, the chair asks if the witnesses are outside waiting to be called in. If the answer is no, the chair can point out it is the parties responsible to have the witness available when needed. The chair then suggests that the party ask a team member to get the witness and bring them to the waiting area in time for that part of the hearing.
Pat, what you suggest is what I try to do regarding asking if the witness are there and the reminder to the party’s responsibility as you say. That’s not quite what I was shooting at.
What I’m getting at is that there is a very defined point in protest hearing where we are trained to invite the parties to call witnesses. It’s laid out in Appx M and USS Procedure Guide.
Now back in taking validity evidence, we aren’t really specifically guided in Appx M or USS procedures to ask the parties if they would like to call witnesses in that phase.
So my question is, when faced with opposing stories in validity, do you invite parties to call witnesses? I’ve heard opposing opinions on that.
Your second comment is spot on and good practice.
I just go back to the words.
Do what you think is necessary to get the facts relating to validity if there is a real dispute about it between the parties.
If the two parties are vehemently opposed as to whether protest was called within the appropriate time you might think it necessary to hear from the witnesses.
If you think it necessary you have to call them.
It is mandatory on the protest committee. "...shall take any evidence it considers necessary... ", note the word "shall".
If you think it is not necessary, don't do it.
Exercise your judgement as to what you consider necessary in the circumstances as they have revealed themselves to you at the hearing.
You might even adjourn the hearing to call a nearby boat. If you think it necessary, then you *shall* do it.
I can't see anything that says you can't seek evidence other than from the parties.
Ultimately the PC has to make a determination as to the facts and you want that determination to withstand any appeal. It might be unwise to find in favour of either party on disputed validity without hearing from the witnesses on that point.
Ultimately you have to be satisfied on the balance of probabilities as to whether the facts support validity.
When discussing this topic, it was never around the question of whether or not the PC can call a witness .. it’s clear that they can. The discussion was more surrounding the role and responsibility of the party to indicate to the panel that their witness has testimony relative to validity when validity is in dispute.
It’s been my thought that, without an invitation from the panel, the parties might not know the appropriate time to bring it up. Also, not calling a witness until taking incident testimony, the panel runs the risk of later hearing witness testimony that has them second guessing their validity decision.