Section 77.07 - Conduct of the Proceeding(1)Docket. The proceeding shall be assigned a number or numbers on the docket maintained by the Division. Copies of all petitions, briefs, advisory filings, exhibits, written testimony, transcripts, memoranda of findings, orders, decisions, and material submitted in connection with a remand order shall be maintained in the Division's files for a period of not less than seven years.(2)Presiding Officer. The hearing shall be conducted by the Presiding Officer who shall administer oaths and affirmations, and make all decisions regarding the admission or exclusion of evidence and testimony or other procedural matters which may arise in the course of the hearing.(3)Ex parteCommunication. From the start of a proceeding under 211 CMR 77.00 and until a final decision is rendered, no person who is not employed by the Division shall communicate ex parte with respect to the merits of a proceeding with the Commissioner, the Presiding Officer, or any Division employee involved in the decision process for the proceeding in question. A request for information on the status of a proceeding, however, shall not be prohibited by 211 CMR 77.07(3). If an ex parte communication is directed to a person in violation of 211 CMR 77.07(3), the person shall immediately inform the Commissioner of the substance of the communication and the circumstances of its receipt. Where a party or his or her agent has violated 211 CMR 77.07(3), the Presiding Officer, within his or her discretion, may decide against that party with prejudice, or may exclude that party from further participation in the proceeding. If the Presiding Officer determines that a person not a party has violated 211 CMR 77.07(3), the Presiding Officer may exclude that person from the hearing.(4)Conduct of Persons Present. All persons present at the hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of Massachusetts. When these standards are not observed, the Presiding Officer may take action as he or she deems appropriate to maintain order in the hearing, including the exclusion of a disorderly person from a further participation in the proceeding.(5)Motions. A party may, by motion, request a ruling from the Presiding Officer. The motion shall state the ruling sought and its grounds. The Presiding Officer may require a party to submit a motion in writing and may, in his or her discretion, hear oral argument on the motion before making a decision.(6)Oral Statements. A person who has not filed a petition for leave to intervene or participate or whose petition has been denied may request permission to make an unsworn oral statement. Oral statements will be heard at any time within the discretion of the Presiding Officer. The Presiding Officer may limit the amount of time allowed for an oral statement. If the oral statement is irrelevant, immaterial or unduly repetitious, the Presiding Officer may restrict the testimony of the speaker.(7)Evidence. The Presiding Officer need not observe the rules of evidence observed by the courts of Massachusetts or of the United States, but shall observe the rules of privilege recognized by Massachusetts law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. The Presiding Officer may exclude testimony or evidence which he or she determines is unduly repetitious, will cause an unreasonable delay of the proceeding, or should have been submitted as part of an advisory filing. All evidence, including records, investigative reports and documents in the possession of the Division, which the Presiding Officer desires to use in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered except as provided in 211 CMR 77.07. Documentary evidence may be submitted in the form of copies or excerpts, or by incorporation by reference.(8)Written Direct Testimony. All written testimony shall be offered in evidence with the same force and effect as though it were stated orally by the witness, and shall be subject to objections or motions to strike in the same manner as oral testimony. In the event a witness who has given written testimony is unavailable for cross-examination on that testimony at the hearing, such written testimony shall be removed from the record, in whole or in part, unless the Presiding Officer determines that no party would be unduly prejudiced by its inclusion. For the purpose of 211 CMR 77.07, "unavailable" shall include, without limitation, situations in which the witness is absent from the hearing, or unreasonably obstructs cross-examination despite an order from the Presiding Officer.(9)Cross- and Redirect Examination. Cross- and redirect examination shall be oral. Unless otherwise authorized by the Presiding Officer, cross-examination shall be limited to matters which are within the scope of the direct testimony of the witness. Redirect examination shall be limited to matters which are within the scope of the cross-examination of the witness.(10)Control of Testimony. The Presiding Officer shall have the right to question witnesses at any time in the course of their testimony. The Presiding Officer may impose reasonable time limits on cross-examination and redirect. Where the Presiding Officer determines that the testimony of a witness is irrelevant, immaterial, or repetitious, he or she may order the witness to limit or omit further testimony on a certain subject or to cease testimony altogether.(11)Additional Evidence. At any stage of the proceeding the Presiding Officer may call for further evidence or cross-examination upon any issue, and require evidence to be presented or cross-examination to be conducted. In connection with a call for further evidence or cross-examination pursuant to 211 CMR 77.11, the Presiding Officer may in his or her discretion alter the established hearing and filing schedules.(12)Rebuttal and Surrebuttal. Rebuttal evidence shall be limited to denial of an affirmative fact which another party has endeavored to prove. Surrebuttal evidence will be allowed at the discretion of the Presiding Officer.(13)Official Notice. The Presiding Officer may take official notice of matters as might be judicially noticed by the courts of the United States or of Massachusetts and, in addition, the Presiding Officer may take notice of general or technical facts within his or her specialized knowledge; provided that the Presiding Officer shall notify all parties of the material so noticed, and shall afford a party an opportunity to contest the facts so noticed. A party requesting that the Presiding Officer take official notice of facts or material must submit a copy of the material with the request.(14)Offers of Proof. A party may make an offer of proof after a ruling of the Presiding Officer excluding proposed evidence. The offer of proof shall include a summary consisting of a statement of the substance of the proposed oral testimony and copies of documents. The Presiding Officer may require that the offer of proof be made in writing. All written offers of proof shall be marked for identification.(15)Stipulations. In the discretion of the Presiding Officer the parties may, by stipulation in writing filed at any stage of the proceeding or orally made at a hearing, agree upon any pertinent fact or issue in the proceeding. In making findings, the Presiding Officer need not be bound by a stipulation, provided, however, that the Presiding Officer shall notify the parties before the end of the proceeding if he or she does not intend to accept a stipulation, and shall give the parties reasonable opportunity to present evidence of any fact or issue covered by such stipulation.(16)Transcript. The insurer shall engage a qualified stenographer, subject to the approval of the Presiding Officer, officially to record and transcribe a proceeding. The insurer shall pay the stenographer's fees along with the cost of providing two copies of the transcript, in a format prescribed by the Presiding Officer, to the Docket Clerk and one copy to the State Rating Bureau and each statutory intervenor. Other persons may obtain copies of the transcript from the stenographer at cost.