Eminent Domain, also known as condemnation law, allows the state to acquire your property when they want to use it for a public use. The are allowed to do this because of the 5th amendment to the U.S. Constitution via the 14th amendment to the U.S. Constitution.

The fifth amendment states, “nor shall private property be taken for public use, without just compensation” (the more widely known section of the 5th amendment prevents self-incrimination and is widely used in criminal movies – this is the actual juicy part of that amendment). The words, even though written in the 1700′s, continue to carry a plain meaning today: the government cannot take your property with paying you just compensation for it. The 14th amendment factors in here as it is the law that makes the states adhere to the rules of the U.S. Constitution (also known as the enabling clause).

Although the words are plain and are easily definable, the extent of their power has been widely debated. Take the word public use, for example. On its face, it seems to be a pretty narrow word. As shown by the case Kelo vs. City of New London, however, defining public use can cause quite an uproar. Although limited now by many state statutes, Kelo defined public use as essentially anything that benefited the public. For Kelo, this included the government acquiring property to stimulate economic development — a definition that angered many people.

Just compensation, on the other hand, has been pretty strictly defined since its inception. In a nut shell, just compensation has come to mean what a willing buyer would pay and a willing seller would sell for in an open, competitive market, without undue compulsion. Although that seems like a fairly comprehensive definition, essentially meaning fair market value, eminent domain law actually leaves out a lot of the factors many want to use when determining just compensation.

Condemnation usually occurs after an offer is made by an acquisition agent for your property, although it isn’t required in some states. Condemnation is started by filing a petition for condemnation, which begins an administrative process whereby several independent individuals, often appraisers, are presented with information regarding your property and asked to evaluate the just compensation due for the acquisition. This can be a cordial or an adversarial process, depending on the circumstances.

Once the court-appraisers have heard both sides, they adjourn, often for several days, and issue a written report determining the just compensation for the property. At that time, the state officially owns your property, although the process does not necessarily have to end there.

If either side is unsatisfied with the award they may file an appeal, which results in a jury trial, the entire point of which is to determine the just compensation due the landowner (the taking itself is not an issue – only damages). The jury’s award is the final say, and when the state pays the determined just compensation to the court clerk, the matter is officially adjourned. » Read more: Eminent Domain Or Condemnation – An Overview

Expert witness analysis and testimony provides both the parties information to settle prior to the actual judicial proceeding. When settlement negotiations are not successful, expert witness testimony provides the trier of fact (judge or jury) information to consider in making their decision. Expert witness testimony is a subset of litigation support services. The expert witness’ primary responsibility is to develop and support a credible opinion of value. The standard of care for expert witness assignments is substantially higher than for typical valuation assignments. Both opposing counsel and the expert witness representing the other party will likely carefully review and scrutinize the expert’s underlying data, analysis and final report. Expert witnesses who develop an opinion of value which is unreasonable tend to cause cases to unnecessarily proceed to trial.

The higher standard of care appropriate for expert witness assignments extends through all phases of the assignment. The expert should precisely determine the scope and purpose of the assignment. This includes the letter of engagement, scope of work, research, report preparation, deposition and trial testimony, and preparation for deposition and trial testimony. All data needs to be researched and verified. In many cases, even if sales data has been previously confirmed, it will be verified a second time for the expert witness assignment. Even if the factual data regarding a comparable sale is accurate, issues relating to the motivations of the party can be meaningful. For example, if a purchaser was anxious to purchase it a property because they own the adjacent property, this could artificially influence the sales price. If an expert witness was unaware of such a fact, it could undermine their credibility during a deposition or at trial. The calculations and thought process for the analysis need to be checked and double-checked, as do the report. The expert needs to carefully prepare for both deposition and trial testimony.

Appraisers sometimes believe that preparing a voluminous narrative appraisal, totaling perhaps 200 pages, which effectively documents their opinion is helpful for litigation. However, it is virtually impossible to prepare a voluminous document without overlooking minor errors. For this reason, is typically better to summarize the data and opinion instead of presenting them in a voluminous report. Preparing a summary report also helps to reduce the cost of an expert witness engagement. While it is important to carefully research the facts and perform a thorough analysis, there is little benefit to preparing a voluminous report.

It is imperative that the expert witness understand that the objective of opposing counsel is to discredit the witness and their testimony. Any aspects of the experts’ opinion, data, analysis or testimony which does not appear to be reasonable provide opposing counsel an excellent opportunity to discredit the expert witness. Typographical errors and minor math mistakes can be effectively utilized to undermine the expert witness’s credibility. If the expert has made a mistake, he should promptly admit it. While all people make mistakes, those who deny them lose credibility.

The expert witness needs to be an advocate for their analysis and opinion, not for their client. Novice expert witnesses sometimes succumb to pressure from clients or other parties to develop an opinion which is not reasonable, credible or supportable. While this approach initially appears helpful to the client, it does not typically provide meaningful assistance to legal counsel or the client since it is not credible evidence for trial. Therefore, it is not efficacious for resolving litigation. In addition, opining an unreasonable opinion has a deleterious effect on the reputation of the expert witness. Expert witnesses who provide legitimate and credible opinions of value provide a meaningful benefit to their clients, counsel and the judicial process. Most cases settle when the experts provide a well-supported analysis. » Read more: Expert Witness Testimony for Real Estate