My Property Is Being Taken by Eminent Domain. Should I Attend the Special Commissioners’ Hearing? (Part 2)

Last week’s blog post explained what a special commissioners’ hearing is and what happens (and doesn’t happen) at the hearing.

But should you, as a landowner, attend the hearing? This week, we share several factors that we consider when advising clients.

Should I attend the special commissioners’ hearing?

There’s no requirement that landowners attend the special commissioners’ hearing. They can still object and go to court to get more compensation and challenge the taker’s right to take the property.

So if you’re the landowner, should you go?

It depends.

Lawyers say that a lot, right? 

(It reminds us of the story where President Truman famously asked for a one-armed economist, tired of his economic advisors proclaiming “On the one hand, this” and “On the other hand, that.”)

If you’re the landowner, your decision about whether to attend the commissioners’ hearing turns on how several factors apply to the particular facts of your case.

Reasons NOT to attend:

1. Don’t show your cards until it counts. This is a good reason to stay home. It’s why we usually advise our clients to skip the hearing. Think about it: If you’re the landowner who got a big award from the commissioners, what’s going to happen? The taker will just appeal the award, and you’ll start from square one in court. Actually, you’re in a worse position when you go to court. After all, if you got a good result at the hearing, you probably put on a good show—highlighting the strengths of your case and the other side’s weaknesses. You’ve educated your opponent. Now the taker knows what’s coming–and will work hard to undermine or cancel your strengths and shore up the weaknesses in the taker’s case. If you’ve got a good case, save it for court.

2. There’s usually no time to get your appraiser up to speed. There aren’t a ton of great appraisers willing to testify for landowners in condemnation cases. The big money is on the taker’s side, which typically hires appraisal firms to perform dozens or even hundreds of appraisals for its project. Finding the right landowner-side appraiser is hard. And it’s even harder to get on the appraiser’s dance card in time for the commissioners’ hearing. Without a top appraiser on your team and an appraisal in hand, you have little chance of doing well at the hearing. And if you know your chances of getting a good result are low, it usually doesn’t make sense to attend.

3. Commissioners often get in a rut. Special commissioners tend to sit in multiple hearings involving multiple different landowners losing property on the same condemnation project. This creates two disadvantages for the landowners:

   First, the commissioners get familiar with the attorneys and appraisers for the taker. And it’s the taker that actually pays the commissioners their per diem fee. In contrast, most landowners are involved in only one special commissioners’ hearing, so they don’t have the same opportunity as the taker’s side to build a friendly relationship with the commissioners.

Second, when commissioners sit in several hearings and decide compensation for lots of landowners along the project, they gravitate toward awarding the same levels of compensation, on a per-acre or linear-foot basis, to all landowners impacted by the project. Even though the law requires factfinders to treat each piece of land as unique, commissioners often feel the best way to be fair is by giving all landowners about the same level of compensation. Since there’s no benefit in going to a hearing and getting a so-so award, it’s usually best to skip the hearing and head to court, knowing a jury is likely to have an open mind and will decide your compensation based on the evidence in just your case.

Reasons to attend:

1. If the compensation is the only real issue and the disagreement on compensation is small, the special commissioners’ hearing can help the parties settle. Sometimes there’s a dispute about whether the taker has the right to take your property. If that issue is at play, attending the hearing probably won’t help the case settle, as the commissioners can only decide one issue: compensation. Also, if the parties are worlds apart on how much compensation is due, there’s little point going. (See Reason #1 NOT to Attend, above.) But if you and the taker are close on the money, a special commissioners’ award can help resolve the dispute. When the difference of opinion is small, it usually doesn’t make sense to appeal the commissioners’ award and spend time and money working up the case to go to trial.

2. The hearing is a chance for “free discovery.” In a lawsuit, “discovery” refers to the process of asking the other side questions and getting documents about the case. The special commissioners’ hearing is a special opportunity for the landowner. The landowner doesn’t have to show up, but the taker’s side does. That means you could send your lawyer to the hearing to ask the taker’s engineer, project manager, and appraiser about the project and about their opinions. So your lawyer gets to question the taker’s witnesses, but your side doesn’t have to present any witnesses. For one day, the “discovery” is one-sided. We’ve seen landowner-side lawyers use this tactic to great effect: (1) getting the taker’s witness to admit facts undermining the taker’s claim to a public necessity or public use for the project and (2) getting the taker’s appraiser to admit that he or she used faulty data or faulty methodologies in calculating compensation. You might be able to use these admissions to help you at trial.

3. Sometimes the compensation dispute is so big that it could make sense to go. Usually, it’s better to stay home when you and the taker have a huge disagreement about compensation. But there’s a possible exception to the rule. Sometimes the disagreement is so large that winning the hearing and getting a big award could make the taker (1) rethink its case or (2) refuse to pay the award, preventing the taker from getting immediate possession of the property until after trial. But, of course, this tactic poses risks for you as the landowner. The commissioners might agree with the taker’s view of things, and now you’ve educated the taker about your case. (Again, see Reason #1 NOT to Attend, above.)

If you’re facing a condemnation project, find a lawyer who regularly (and successfully) handles this kind of work. Most landowners leave lots of money on the table when they settle with the taker before hiring a lawyer. So hire a lawyer. And then talk with him or her about these factors—and how they apply to your case—as you decide whether to attend the special commissioners’ hearing.