Expert witness testimony is a cornerstone of eminent domain litigation, and the key aspect to eminent domain trial work is expert witness preparation. Even the best of experts will not fare well at trial if not sufficiently prepared. And as we all know, being familiar with an appraisal assignment—including methodology and conclusions of value—will not automatically bring the best result without being prepared for the rigors the witness stand.
Well-prepared experts will fare much better on the stand at trial, as demonstrated by a condemnation case we tried to a jury verdict this year. The case involved a strip take from a commercial property to accommodate a highway widening. How do you think it went?
The landowners’ theory of the case was that their lot had been suitable for a high-intensity use such as a convenience store in the before but was no longer suitable for such use in the after because of the reduction in size of the parcel. However, the experts that the landowner fielded had crucial holes in their coverage and preparation. Although the other side retained a self-described “land planner” to testify about the reduced acreage after the take, his work did not prove that the reduced parcel size resulted in reduced actual utility. The landowners also did not retain an engineer connect the dots to prove reduced utility because of the reduced size of the lot.
We, on the other hand, retained and prepared an engineer who demonstrated through specific examples that the potential uses in the before were still physically viable in the after, despite the reduced size of the lot. While our experts hit their marks, the opposing land planner admitted on the stand that his work would need to be checked by an engineer, which again they did not have. Their expert appraiser also failed to take into account that a nearby high-intensity use of a type they were claiming they could no longer build, i.e. a convenience store, was on a lot of smaller size than the subject property after the take. In contrast, we fielded an appraiser as well as a broker that showed that the property was not a prime location for the alleged high-intensity use before or after the take.
I like to think that the relative levels of witness preparation were obvious, but really the proof was in the pudding. The jury deliberated for less than ten minutes and returned a verdict in the exact amount of our client’s evidence with zero damages to the remainder.
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Among their other activities in the right-of-way field, Dave Arnold and Ross Greene with Pender & Coward’s Eminent Domain / Right of Way Practice Group, who tried the case mentioned above, are both certified instructors authorized to teach IRWA course number 804, Skills of Expert Testimony.
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