CONDEMNATION/EMINENT DOMAIN CASES: DEVELOPING AND EFFECTIVE TRIAL STRATEGY
EFFECTIVE TRIAL STRATEGIES FOR EMINENT DOMAIN/CONDEMNATION CASES
Christopher L. Phillips
JACKEL & PHILLIPS, PC
707 Whitlock Ave
(The following is an abbreviated version of my guide. Please e-mail me for the full text if interested)
I. OVERVIEW OF DEVELOPING AN EFFECTIVE TRIAL STRATEGY
The main hurdle to overcome in most condemnation cases is explaining to the jury in a concise and credible manner why your valuation of market value is correct and, conversely, why the other side’s valuation is wrong or simply not credible. A condemnation case is by its nature dry and boring to most jurors. Accordingly, the natural tendency for most jurors when listening to and evaluating the “numbers," as inevitably enunciated by each side’s “expert real estate" appraiser, is to find that both experts (and therefore both sides) are credible and then to simply split the difference between the two numbers
In many cases, the key to winning the jury to your side is to find that “significant" distinguishing factor in which the other side failed to consider or simply disregarded in their evaluation, but which supports your valuation of the case in a meaningful manner. It should be a fairly major idea/concept that a jury can easily latch onto and which will form the focus of your evidentiary case, trial theme and argument (thereby distinguishing your case while leaving distrust for the other side). The key to developing the “distinguishing" factor is to find a knowledgeable real estate expert who will help you identify and articulate such issues. These “factors" really turn on the particulars of each case (and therefore may take numerous forms), but one example may be that the subject property was evaluated as residential but should have been evaluated as commercial due to the changing surrounding properties or developing commercial corridor. The crucial point is to know your case thoroughly so that you can develop this distinguishing point.
Not all cases, however, have the “big" or glaring distinguishing factor between the opposing appraisals. If that is the case, you’re in the typical slugfest of “my comparables" are better than yours, and/or you used a wrong appraisal mythology, and/or your expert lacks education or experience and is therefore not as credible as mine (of course, these attacks may also be used in addition to the “significant" factor case emphasis). Accordingly, the focus of your case may become something to the effect that the opposing side is comparing apples (the subject property) to oranges (the comparable sales) and not “apples to apples."
II. DEVELOPING YOUR CASE FOR TRIAL
As is the situation for most litigation, developing an effective trial strategy starts long before you ever reach trial. As mentioned above, your case is generally only as good as your expert real estate appraiser. If you retain an appraiser who does not have the right credentials or does not take the time to properly investigate and evaluate the case, then you have placed your case behind the proverbial “eight ball" before you have spoken the first word to the jury.
III. OPENING STATEMENTS
Like any trial, one should develop a clear and driving theme to your case starting with the opening statement. If you are a Condemnor, try to open with a brief summary of your theme and then turn to explaining why you are here and brief background of the case. You may want to emphasize that the Condemnor is not a “wrongdoer" and that the sole issue for determination is the “Fair Market Value" of the property interest acquired (and other damages if applicable) and that the Condemnor stands ready to pay exactly that, the fair market value. Also, you should have demonstrative evidence ready to explain the nature of the taking. You may then want to touch on who are your witnesses (usually starting with an engineer who can explain the take and then your appraiser who will explain the valuation) and a brief summary of their anticipated testimony.
If you are a Condemnee, you have an easier time in that you can really focus on where the Condemnor has gone wrong. Of course, you probably want to touch on the background of the case also and give context as to who is the Condemnee, but the emphasis of your case opening should be on your valuation and explaining your evidence and pushing back Condemner’s assertions in opening.
One suggested theme may be that your case is built around objective market data, not just the whim of an expert who did not bother to do a very good job in investigating and evaluating the market. Another theme may be “this case is about beach front property versus beach view property." Side “A" wants you to compare the subject property to beach-front property, but the evidence will show that it should be considered more like beach view property.
IV. EXPERT DIRECT EXAMINATION
The key to expert direct examination, especially in a condemnation case, is to demonstrate that your expert has excellent credentials, performed a very thorough job in investigating and evaluating the case and, basically, knows what he is talking about. While there is no set format, the following areas are suggested topics for your expert during direct examination:
BACKGROUND: Briefly introduce who is this expert.
CREDENTIALS: While this is boring stuff, it is your bread and butter when it comes to experts so don’t cheat your case by blowing through this testimony (or stipulating to the credentials if suggested by the other side).
APPRAISAL BUSINESS: Explore with your expert the types of properties he has appraised to show his wide knowledge of the appraisal field.
EDUCATE THE JURY ABOUT THE APPRAISAL PROCESS: Explore with your expert the general appraisal topics first without getting into the specifics of your case.
GIVE AN OVERVIEW OF YOUR EXPERT’S OPINION: Try to work from the general to the specific highlighting the important issues along the way.
DESCRIBE THE SUBJECT PROPERTY: Demonstrative evidence such as photographs, drawings, maps, plats, and models are extremely helpful to show the appearance, location, and characteristics of the property before and after the condemnation.
DESCRIBE THE SURROUNDING CORRIDOR OR AREA: Explore with your expert the area around the subject to give some context as to where the subject property is located.
EXPLAIN THE APPRAISAL INVESTIGATION: Credibility derives from an explanation of your expert’s thorough research into the subject.
EXPLAIN THE APPRAISAL PROCESS: Once your expert has thoroughly explained his investigation, then turn to the issue of explaining his appraisal process in your case and how he formulated his opinions.
CONCLUSION: Again, return to the value opinion by asking questions such as “what was your final indication as to the FMV of the subject property (assuming it is a total take) from the Sales Comparison Approach?"
V. EXPERT CROSS EXAMINATION
Try to keep it concise and only ask questions the answers of which you can use in your closing argument. It is usually smart to start with concise leading questions which are basically quotes from the deposition. This serves two purposes, first it places the expert on notice that if he/she deviates from past testimony you will make him look foolish with impeachment (and be ready to do so). Second, it provides a rhythm to your cross that often times the expert will simply fall into after enough questioning (and a couple of incidences of impeachment). The following are some general topics for concise cross examination:
Credentials (especially what this expert lacks that your expert has);
Lack of Relevant Appraisal Work History (new kid on the block versus an old hand?);
Bias (in that the appraiser solely works for one entity and wants to please that entity to put food on his table versus your appraiser who has a wide client base and is not beholden to anyone);
Slipshod Investigation (target specific things that this appraiser did not do that your appraiser did in support of a thorough and complete investigation);
Changes in Opinions (changes in opinion due to new information that he or she should have known before, impacts credibility… of course, a refusal to change an opinion in light of key facts may also impact credibility);
Lack of Knowledge Regarding Key Appraisal Concepts (pinpoint the key appraisal issues in your case and focus on where this expert missed the boat);
Erroneous Assumptions which would impact value determinations such as an assumption that the property was zoned residential, but highest and best use should have been considered commercial;
Flawed Appraisal Methodology such as using the cost approach for a building which is very old.
VI. OBJECTION STRATEGY
If it is not hurting your case let it go. When you are up and down in your seat objecting to everything under the sun, the jury tends to believe that you have something to hide. Pick your battles and the jury will find you more credible.
VII. CLOSING ARGUMENTS
Closing statements are, of course, our last opportunity to drive home the distinguishing factors which make our valuation more credible than the opposing side. If your case has gone well at trial, you may even want to ask the jury to throw out the other side’s evidence as simply not credible and should not be seriously considered. In closing, you typically want to stress the “thorough" and “methodical" job that your expert has performed in not only valuing the case but in investigating the case. Walk through what your expert researched and how he formulated his opinion in the market (with enough detail to remind the jury and at the same time using general references so as not to put the jury to sleep), as opposed to the other side’s case of its his “opinion and I’m sticking to it." In short, walk through your evidence and do not be shy about using your demonstrative aids to once again highlight and illustrate your case.