November 12, 2018

Getting Your Boots Dirty: Why Site Visits Matter in Condemnation

While modern technological advances often allow lawyers, clients and courts attractive opportunities to fulfill their roles virtually and at lower cost, when a lawsuit involves real estate, there is simply no substitute for an in-person visit to the site. This is especially true in eminent domain proceedings, where the factfinder (typically a jury or commission) is tasked with determining the fair market value of the property being taken by the government. A personal visit to the real estate in question provides invaluable perspective and context that cannot be supplanted by videos, photos or expert reports — and the more subtle qualities observed during such a visit may be the key to achieving the desired valuation outcome.

Landowner’s counsel should make it a priority to visit the subject real estate as early as possible in the engagement. Upon request, the condemning authority should provide a survey and stake out the area being taken, which affords an opportunity to fully identify what property rights are in jeopardy early on; this may even reveal compensable issues not evident on paper. And while it may seem obvious, any expert offering an opinion about the site, such as fair market value or its highest and best use, should have actually visited the property during the times most relevant to their opinion—i.e., times of significantly increased or decreased foot traffic that might impact use or valuation.

But what about a visit by the jury or commission during trial? While site visits (sometimes called “jury views”) in this context are generally rare in commercial litigation, they are quite common in eminent domain proceedings. However, this kind of visit comes with its own set of challenges. Landowner’s counsel should carefully consider whether the additional context gained from such a visit is likely to help or hurt the case, which is sometimes a difficult choice that should include full participation by the client.

In making this consideration, it is imperative to understand the jury view procedures particular to the jurisdiction, which can differ greatly. Whether a court will even allow its valuable time and resources to be expended on a site visit is not always a given. In some jurisdictions, jury views are mandatory upon request by any party, but in others, the court has significant discretion on allowing a view. There are also differences across jurisdictions on whether the view itself is actually considered evidence, or whether it is more akin to an opening statement, which is not evidence. Other practical considerations include:

  • whether either side will be allowed to make presentations at the site and who may speak.
  • what limits will be placed on the content of any presentations.
  • whether there will be a court reporter or other type of recording made during the visit.
  • the logistics of getting the jury to the site.
  • how long the visit will last.

These details will need to be negotiated with opposing counsel and approved by the court well in advance of trial. One of the most important considerations is precisely when during the proceedings the site visit should occur. This too may be dictated by local procedure, but where it is not, counsel will need to decide when it will be most advantageous to conduct the viewing—i.e., during or immediately after opening statements, during the testimony of a particular witness, or after all of the evidence has been presented. Some jurisdictions may even permit visits both before and after construction of the government’s project is completed.

A well-orchestrated personal visit to the property during trial can be a powerful tool, enhancing the factfinder’s understanding of the case and exposing it to valuable information which may significantly impact the outcome. Experienced eminent domain counsel can help navigate the applicable jurisdictional rules governing such site visits, maximizing the effectiveness of this tool.

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