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August 5, 2014
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Vail Daily column: Hearings and trials

Trials and hearings. What’s the difference? Yes, precisely. Aren’t they sort of the same thing? Well, yes. And no. Sort of. But not exactly.

Well, then ... Let’s vivisect, then reassemble. What, exactly, is a hearing?

The law defines a hearing as “a proceeding of relative formality (though generally less formal than a trial).”

Hmmm. You see this sort of circular firing squad in law sometimes, a “this isn’t that” kind of definition that doesn’t always get you that much farther down the road.

BACK IN THE OLD DAYS

When I was a young lawyer — in the days before the Internet and hyperlinks — the way you did legal research (are you sitting down?) was to slog over to the law library and (gasp!) look through books.

“Books,” for those of you who may be unaware, are those bound things, usually with treated cardboard covers that are filled with paper and words (sort of like a computer screen) smeared all over them. If you’re of a particularly young age, ask your parents or grandparents — they may have an example of one.

Anyway, in the days when we looked at books, say you found a statute of particular interest (a “statute,” you may recall, if you’ve read this column in the past, is a legislatively enacted law as opposed to “case” law). The statute might read something like this; “Except for Sections 11(a)(1), 17(1)(e)(3)(iii), 412 (b) and 613(c)(2), and including Sections 14.9(c), 18(3)(A), and 119.2 and those exclusionary provisions of Sections 124.3(1)(c)(B) and (C).”

Well, what’s a body to do? Besides slurping down a strong cup o’ Joe, one simply had to pull the volume (kiddies, a “volume” is sort of the same as a “book”) out of the stacks (a “stack.” oh my! Let’s just agree that the “stacks” were where books that were piled to the heavens in a library) and look up each and every referenced section.

If you’ve been reading my columns for any length of time, then you know of my affection for Julie Andrews in the “Sound of Music” and her sage advice to “start at the very beginning” (which is a very good place to start). So you’d pull Section 11(a)(1) off the shelf and dig in. Section 11(a)(1) might go something like this, “This Section and those of 13.2(1)(D)(v), 27.2(1)(e)(iii), 54, 58, 59, and 73.2(a)(2)(D)(iv)(3).” you get the point — a circular firing squad if you ever saw one!

DEFINING IT BY WHAT IT IS NOT

But I digress. The point was that law defines itself sometimes by what it is not. So, OK, a “hearing” is a big deal but not as big a deal as a trial. Got it.

But the definition continues. Besides being a proceeding of relative formality, a hearing is “generally (but not always) public, with definite issues of fact or of law to be tried (well, hold on a sec; doesn’t “tried” suggest a trial which a “hearing’ is not?), in which witnesses are heard and parties proceeded against have right to be heard and it is much the same as a trial (and, here’s the topper) and may terminate in a final order.” I swear, this is straight out of Black’s Law Dictionary which (besides the Constitution) is the nearest thing in law to a bible.

So to sum up, a “hearing” is something formal (relative to some other unexplained thing) which is often (but not always) open to the public, where things to be tried are heard and witnesses indulged, which is much like the trial it is not and where final judgment may result.

I’ve got to shake my head; not very helpful is it? But let’s slog on. The definition continues “It is frequently (read this, “not always) used in a broader and more popular significance to describe whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception, and to hearings before administrative agencies as conducted by a hearing examiner or administrative law judge.”

I hate to be a potty mouth, but WTF?!

Without delving too far into this, a “magistrate” is sort like a “mother’s little helper” of the law; not quite a judge but judge-like in some respects. Suffice it to say for our purposes that a magistrate can “hear” certain matters and take certain (but not all) actions that a judge could take. They are officials with “minor” judicial authority (yeah, I’m thinking the same thing; another column for another day about the kinds of judges and “almost judges” that comprise our system). An “administrative law judge” is one who (wait for it ... ) presides at administrative hearings. “Administrative” hearings are generally before boards say, for example, the National Labor Relations Board or your own Eagle County liquor licensing authority.

Let’s now take another leap. A “trial,” stated simply, is “a judicial examination and determination of issues between parties to the action.” By the way, I love that a lawsuit is an “action”; makes it sound so vigorous, doesn’t it? Note, the definition says nothing about a “trial” being something different, more formal or more expansive than a “hearing”. I hate to throw a wrench in things, but isn’t a hearing a “judicial examination and determination of issues between the parties to the action” too? Ah ... yup.

So where does this leave us other than confused?

Let me cast aside Black’s for a moment and chip in my own two cents’ worth. A “hearing” is generally a proceeding before the court on a particular issue but not the whole shebang (although ... gulp! ... sometimes, resolution of the particular issue can result in the whole matter in dispute going away). A trial is a proceeding that resolves all of the ultimate issues in the case. Hearings are generally — at least relative to the coming trial — brief(er) than a trial. Hearings knock off certain issues before trial. Trials resolve (however happily or not) the entire dispute (unless, of course, there follows an appeal).

So hearings are for certain matters, and trials are for the whole schmear.

But then there’s this: In some cases (for example in divorce actions), the final matter (rather than being a trial) is a hearing. Go figure.

As I said, law is like a circular firing squad sometimes.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include commercial transactions, real estate, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at robbins@slblaw.com or robbins@colorado.net.


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The VailDaily Updated Aug 5, 2014 06:55PM Published Aug 5, 2014 05:38PM Copyright 2014 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.