January 2011 - National Labor Relations Board

10380 ROLE AND CONDUCT OF TRIAL ATTORNEY10380–10409 THE HEARING10380 Role and Conduct of Trial AttorneyThe trial attorney is an advocate who prosecutes the case as set forth in thecomplaint on behalf of the General Counsel. The trial attorney represents the public’sinterests by presenting evidence and arguments in support of the complaint with honestyand integrity. In order to maximize the potential for success, the trial attorney should beguided by the recommendations and suggested practices set forth in the memoranda ofthe quality committee in conjunction with the Regional Office’s and trial attorney’s ownexperience. See OM Memos 06-16, 06-91, and 07-84.10380.1 Conduct Toward the Administrative Law JudgeThe trial attorney should address the Administrative Law Judge using terms ofrespect, such as “the Court” and “Your Honor.” The attorney must be sensitive to therole of the ALJ as an impartial decisionmaker and avoid any appearance of a specialrelationship with the ALJ or engage in other conduct that would suggest bias or prejudiceby the judge in favor of the General Counsel’s case. The trial attorney should be anexample to the other parties by showing respect for the ALJ’s procedural rulings, startingtimes and role in conducting the hearing. However, the trial attorney must exerciseindependent judgment in vigorously presenting and advocating the General Counsel’scase as set forth in the complaint. As counsel for the General Counsel, the trial attorneymust protect the record and, where appropriate, raise objections, take a special appeal tothe Board or submit offers of proof.10380.2 Conduct Toward the PartiesThe trial attorney is an officer of the court and a public servant whose dealingswith others, including all parties, should be courteous and marked by integrity andcommon sense. The trial attorney should maintain a professional relationship with thecharging party, respondent, their counsel and any representatives, and maintain anappropriate independence from the interests of any party.10380.3 Responsibility for Prosecution of the CaseAs counsel for the General Counsel the trial attorney represents the public’sinterests by prosecuting the complaint on behalf of the General Counsel, under thedirection of Regional Office management and supervision. Although the interests of thecharging party will, in most instances, be in harmony with such prosecution, counsel forthe General Counsel does not represent the charging party. During preparation and thecourse of the hearing, the charging party or its counsel may make suggestions or giveadvice about the prosecution of the case. The trial attorney must be cautious indetermining which suggestions to adopt or resist and be courteous but firm in maintainingcontrol of the presentation of the case. The charging party, on its own behalf uponentering an appearance, is entitled to examine witnesses and introduce additionalevidence, as well as to argue for additional remedies. However, the trial attorney shouldRevised 01/11