ALI-ABA Course of Study Eminent Domain and Land Valuation Litigation. January 3-5, 2008 San Francisco, California. Selling Value at Trial

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1 311 ALI-ABA Course of Study Eminent Domain and Land Valuation Litigation January 3-5, 2008 San Francisco, California Selling Value at Trial By County Attorney Chesterfield, Virginia

2 312 Selling Value at Trial The Effective Use of Pictures and Stories in Eminent Domain Cases Page # 1 I. Post-Kelo Legislative Initiatives That Will Affect Eminent 1 Domain Trial Strategy II. How Does My Juror Make Her Decision? 6 III. Why Do Pictures and Stories Work? 9 IV. What is My Juror Thinking During an Eminent Domain Trial? 15 V. Using Pictures and Stories to Sell Value at Trial 16 a. Public Hearing 16 b. Jury Selection/Voir Dire 17 c. Opening Statement 18 d. The Trial 20 e. Closing and Rebuttal 21 VI. Ten Commandments of Creating Effective Visual Exhibits 21 VII. Admissibility of Visual Evidence in Eminent Domain Trials 22 1 Internal Pagination i

3 313 I. Post-Kelo Legislative Initiatives That Will Affect Eminent Domain Trial Strategy In the wake of the Kelo v. New London decision, 545 U.S. 469 (2005), Virginia, like many states, moved aggressively to make the eminent domain process more land-owner friendly. Any post-kelo statutory protections extended to landowners need to be mined in ways to create opportunities at trial. Substantive changes in Virginia statues adopted in 2006 and 2007 that create new trial opportunities for landowners and that mimic statutory provisions in many states included: A. Redefining blight in a way that prohibited the use of crime statistics as evidence of the public purpose necessary to condemn blocks of homes to redevelop deteriorating neighborhoods. Rather than establishing a public purpose by showing that a blighted area is a magnet for crime, now each building within the blighted area would have to be vacant and, itself, constitute a public nuisance. Such a precise, individualized factual finding is never achievable for an entire area. In a declining area where many homeowners would normally be happy to dump their property on the government, these new factual chokepoints are a huge incentive for people to hold out to frustrate a unified redevelopment scheme by a city or housing authority. B. Requiring a local public hearing as a precondition to any use of eminent domain. A public hearing on whether to condemn a particular parcel allows the property owner to publicly sell his personal story and the landowner can begin to establish a theme of insensitivity toward his family or a tale of government incompetence that needlessly ended in condemnation. C. Use of a randomly selected jury composed entirely of freeholders. 1. Under the old Virginia commissioner s jury system, attorneys local to the area who were familiar with real estate professionals and appraisers and who, over time, developed a stable of potential commissioners no longer have an advantage over attorneys from other areas. Eminent domain practice will become more statewide; similar to products liability litigation, or personal injury litigation. A lawyer s 1

4 314 ability to implicate a story of property rights being needlessly trampled upon becomes more telling to a randomly selected jury of freeholders than technical jargon related to valuation of real estate. A randomly selected jury of freeholders personalizes the David v. Goliath theme of condemnation. During the years when Virginia experimented with using randomly selected juries, the state transportation department responsible for building and maintaining roads outside cities ( VDOT ) reported anecdotally that some citizens were personally offended by the 5 th Amendment s right of government to take property against the will of the landowner and, contrary instructions not withstanding, would punish the government for taking property against the will of the landowner. VDOT's perception of the cause of these "freak" awards or shock verdicts could be nothing more than VDOT being punished for being VDOT; meaning VDOT paying a price for its historical insensitivity and overbearing approach toward landowners. Stories of violating owner s fundamental right of property ownership are more important to a normal juror than technical issues related to valuation. This mindset is contrary to the framework of the old commissioner s system, where commissioners were well aware of the eminent domain power, understood it, were not offended by it and the dispute was not considered "personal; it was just about money. 2. The major theme of a landowner s case with a jury should be more analogous to the garden variety personal injury case. Without much effort on his part, the landowner can expect to receive as compensation an amount compromised between the bookend numbers of the condemnor s and landowner s appraisals. The false bracketing of value or the creation of a wildly large spread in value to create a compromise favorable to the landowner or the cobbling together of a higher split the baby in half compensation number will continue unabated after Kelo. Arguments over damages to the residue will still be a fertile battleground between the parties. But the thematic focus now, as it is in every personal injury case, is to make the jury mad at the condemnor for some reason. That goal can be achieved in several ways such as (1) ingraining a level of 2

5 315 sympathy toward the client that can only be sated by a large financial award, or (2) destroying the credibility of the lawyer or representatives of the condemnor so that the jury feels compelled to award a number that is so favorable to the landowner that it sends a message or punishes the condemnor for being insensitive or wrong. The condemnation award then becomes a surrogate for punitive damages. The landowner s theory must be that this case is not just about the money, it is about how I have been treated by the mean, vile, insensitive, stupid government. Alternatively, it is about how I have been badly treated by a rich, fat-cat public service corporation running rough-shod over peoples' lives. 3. The use of only landowners on the jury allows further development of the personal injury/victimization story-line because every one of the jurors is theoretically subject to being condemned and, therefore, more receptive to the there but for the grace of God go I fear. The jury members will then be implicitly challenged to make an award that makes sure that the government does not keep acting this way with people like me (i.e., a landowner). That same story-line would not resonate with lessees. D. Defining for the first time by state statute the right to hold private property as a fundamental right. The new statute is located not where it should be logically in the condemnation title within the Code of Virginia, but peculiarly in Title I, immediately after both the state and U.S. Constitutions. This statutory structure is symbolic of a new overriding importance being placed on limiting the exercise of the eminent domain power. Section Limitations on eminent domain. A. The right to private property being a fundamental right, the General Assembly shall not pass any law whereby private property shall be taken or damaged for public uses without just compensation. Interestingly, the Code of Virginia does not feel the necessity to restate in a statute that any of the other Bill of Rights protections such as freedom of speech are fundamental rights. 3