Harris Beach attorney Philip G. Spellane presented a webinar on “Eminent Domain and Land Valuation Litigation” hosted by The Knowledge Group. Phil is a partner in the Business and Commercial Litigation Practice, a Fellow of the American College of Trial Lawyers and named a Best Lawyer in America in bet-the-company litigation, commercial litigation, eminent domain and condemnation law.  He has represented New York agencies in eminent domain acquisitions and ensuing valuation proceedings, as well as numerous other private and public entities in eminent domain and condemnation proceedings and related valuation litigation.  Key webinar topics included:  Selecting the Valuation Expert; Pre-Trial Conference and Motions in Limine; Trade Fixtures; Direct Examination of Expert; Cross Examination of Opposing Expert; and Post-Trial Submissions.  The following topline advice was covered in each of the segments.    

Selecting the Valuation Expert: Retaining and working with experts on valuation issues present a variety of issues for trial counsel.  To determine the type of expert needed, consider the following:  What is the principle theme of the trial?  What are the key issues in the valuation?  Are there specific industries involved?  When selecting an expert, consider carefully his/her background, training, professional experience, reputation and standing and prior trial testimony.  The expert’s report must be comprehensive and its conclusions fully supported and documented. Pay particular attention to the proposed comparable sales. Prepare your expert for areas of cross by opposing counsel; address issues related to drafts and prior appraisals.

Pre- Trial Conference and Motions in Limine: This promotes efficiencies for both the Court and counsel and also offers an opportunity to define and or narrow trial issues. Best practices include preparing a Memorandum of Law sufficiently in advance of trial to address the proper valuation approach.  The pre-trial conference or motion in limine should not be a disguised motion for summary judgement or motion to dismiss.

Trade Fixtures: The New York approach to trade fixtures focuses on the protection of tenant ownership interests and lease provisions.  The fixtures must be used to advance the claimant’s business at the time of taking.

Direct Examination of Expert: The appraisal reports are filed with the court clerk well in advance of trial. The court and opposing counsel therefore will have your appraiser’s report before the trial begins. The direct examination is typically a walk-through of the report, enabling the expert to establish his/her credentials, as well as the valuation itself.

Cross Examination of Opposing Expert: An expert opinion in an eminent domain trial is subject to traditional methods of cross examination to assess reliability of the expert’s opinion and credibility. When preparing your cross examination of opposing expert, focus on two questions:  what do you want the cross to accomplish and where do you want to be at the conclusion of cross?   Keep the cross tightly focused.    Meet with your own expert regarding the cross of the opposing expert, and test the expert’s data and calculations underlying the opinion as to valuation.

Post- Trial Submissions: In non-jury cases (as in New York) a post-trial submission can work as an effective closing statement.  Obtain a transcript to provide exact citations to testimony and exhibits, highlight your client’s strengths as well as your opponent’s weaknesses.  Show how the facts established at trial prove what you said you would show at outset in your pre-trial memorandum of law.

Listen to Phil’s recording.   https://knowgp.org/2tn13QP