For the state commissions of Arkansas, Hawaii, Indiana, Mississippi, and New Hampshire, I have organized and moderated regulatory hearings, both adjudicatory and rulemaking, on the following subjects:
Regulatory hearings are critical to a commission's obligation to gather facts and insights. But they run the risk of becoming a "tragedy of the commons": each party exploiting its hearing time for its own advantage, leaving little time for the commission to promote the public interest. (See my essay discussing the "tragedy of the commons" problem in the context of transmission cost allocation: Interconnection Animus: Do Regulatory Procedures Create a “Tragedy of the Commons”?)
Working with commissions, we have found ways to avoid this result.
Our proceedings have used a unique approach: organizing appearances by issues rather than parties. We take the following steps:
Each panel begins with questions asked by the moderator on behalf of the commission. To develop these questions, the moderator works with commissioners and staff to identify, from the submissions, areas where more facts and insights are needed. The questions tend to focus on solutions, asking witnesses for reactions and suggestions for improvement. In this way, the hearing continuously focuses on the commission's obligation to improve market performance, rather than on parties' pecuniary goals. The moderator is making every witness a resource to the commission rather than an advocate for a single party. These questions can go to any witness at any time, with opportunities for other witnesses to chime in. Since no witness knows when he or she will be called on to respond, the state of alertness is high throughout. There are no dull moments. Often the moderator asks other witnesses to comment on a prior witness's statement.
When the moderator has completed his questions (which are timed to fit within the scheduled period and to leave parties time to ask their own question), each party's lawyer has an opportunity to examine other witnesses. Given the comprehensiveness of the moderator's questions, the lawyers tend not to have many questions. This saves everyone time. The moderator's non-adversarial questioning tends to produce answers faster than adversarial lawyer questioning.
At the end of the week, we give all parties, either through their lawyers or their experts, an opportunity to make closing statements. This step ensures that the commission hears about anything that might have been omitted during the hearing. We usually find that because of the extensive dialogue that has occurred during the week, most parties have little to add in these closing statements.
This approach has the following advantages over the conventional one-party-at-a-time, one-witness-at-a-time approach: