Ins 5.39(3)(a)(a) In a class 1 proceeding where the office has denied a license application, the office shall proceed first with the presentation of evidence. The petitioner has the burden of proving, by a preponderance of the evidence, that the denial should be modified or rescinded.

Ins 5.39(3)(b)(b) In a class 2 proceeding, the office shall proceed first with the presentation of evidence and has the burden of proving its case by a preponderance of the evidence.

Ins 5.39(3)(c)(c) In any case not governed by par. (a) or (b), the petitioner shall proceed first with the presentation of evidence unless the administrative law judge specifies a different order of proof to promote an orderly consideration of the contested case. The petitioner has the burden of proof unless the administrative law judge orders otherwise. The standard of proof shall be a preponderance of the evidence. The rules of civil procedure for actions in circuit court shall guide the administrative law judge in deciding the order of proof and the party having the burden of proof, if disputed.

Ins 5.39(4)(a)(a) Oath or affirmation. The administrative law judge or court reporter, if one is present, shall administer an oath or affirmation to each witness, including a witness appearing by telephone or video-conference, before he or she testifies, as provided in s. 906.03, Stats.

Ins 5.39(4)(b)(b) Examination of witnesses.

Ins 5.39(4)(b)1.1. If the office is a party to the proceeding, an employee of the office designated by the commissioner to act as counsel for the office shall examine and cross-examine witnesses on behalf of the office.

Ins 5.39(4)(b)2.2. A party or the party’s attorney on behalf of the party, may examine and cross-examine witnesses. Only one individual may examine or cross-examine a witness on behalf of a party except with permission from the administrative law judge.

Ins 5.39(4)(c)(c) Adverse witnesses. Any party may call as an adverse witness any other party, any officer, agent or employee of a party or any witness on behalf of a party, if permitted by the administrative law judge.

Ins 5.39(4)(d)(d) Cross-examination. Cross-examination is not limited to matters covered on direct examination. The administrative law judge may limit cross-examination as necessary to avoid needless waste of time or undue harassment of witnesses.

Ins 5.39(4)(e)(e) Limitation. The administrative law judge may limit the scope of redirect and recross-examination.

Ins 5.39(4)(f)(f) Leading questions. Leading questions may not ordinarily be used in the direct examination of a witness, but may be used in cross-examination. A party may use leading questions in the direct examination of either of the following:

Ins 5.39(4)(f)2.2. A witness who is hostile, unwilling, adverse or evasive, if the administrative law judge permits the use of leading questions in the examination of that witness.

Ins 5.39(5)(a)(a) Admissibility.

Ins 5.39(5)(a)1.1. The receipt of testimony and other evidence in contested cases is governed by s. 227.45, Stats. The administrative law judge shall admit evidence that has reasonable probative value, but shall exclude evidence that is immaterial, irrelevant or unduly repetitious, or that lacks reasonable probative value. The administrative law judge may admit hearsay evidence and shall accord it as much weight as the administrative law judge considers warranted by the circumstances.

Ins 5.39(5)(a)2.2. Evidence submitted at the hearing need not be limited to matters set forth in the pleadings. If variances occur, the pleadings shall be considered conformed to the evidence. The administrative law judge may grant a postponement if necessary to give a party adequate time to rebut the evidence involved in a variance.

Ins 5.39(5)(b)(b) Objections; offers of proof.

Ins 5.39(5)(b)1.1. If the administrative law judge sustains an objection to the admission of evidence, the party seeking to have the evidence admitted may make an offer of proof. The administrative law judge shall direct the form of the offer of proof.

Ins 5.39(5)(b)2.2. Failure of a party to object on the record to the admission of any evidence is a waiver of the right to object.

Ins 5.39(5)(b)3.3. Failure of a party to make an offer of proof is a waiver of the right to object to the administrative law judge’s ruling on the objection.

Ins 5.39(5)(b)4.4. The administrative law judge may order the parties to brief any objection. If the party making the objection fails to brief it, the objection is waived.

Ins 5.39(5)(c)(c) Documents. Documentary exhibits shall, as far as practicable, be on 8-1/2 by 11 inch paper, unless the administrative law judge permits otherwise or unless the document is a form printed on 8-1/2 by 14 inch paper. The administrative law judge may order charts used as exhibits to be reduced to 8-1/2 by 11 inch copies.

Ins 5.39(5)(d)(d) Copies. The administrative law judge may permit the filing or use of a copy in place of any original document, subject to authentication by the proponent if its authenticity is challenged in a prehearing motion.

Ins 5.39(5)(e)(e) Prefiled exhibits and prepared testimony. The administrative law judge may permit or order the parties to submit evidence in the form of documentary exhibits or prepared testimony or both before the hearing. The administrative law judge shall specify the date by which the evidence shall be submitted, in order to allow the parties reasonable time for review. Exhibits and testimony submitted under this paragraph shall be admitted in evidence as though given orally if the author is present and available for cross-examination.

Ins 5.39(5)(f)(f) Technical data. If evidence consists of technical data that would make oral presentation difficult to follow, or if information can be more effectively presented visually, it may be presented in exhibit form and supplemented and explained by oral testimony.