California Eminent Domain Report

A recent post on the Biersdorf & Associates Eminent Domain Blog discussed criteria for hiring an eminent domain attorney.  While reading the post, I found myself agreeing with much of what they have to say, and since finding a qualified eminent domain attorney can be a tricky process, I thought I would pass it along.  That said, I disagree with some of what they say, so I also wanted to offer my own viewpoint.

Biersdorf breaks the inquiry down into three steps:

• "Experience";

• "Are They Looking Out for my Best Interest?"; and

• "Set Expectations."

Experience.  The experience criteria is pretty straight-forward, focusing on the attorney's experience in handling eminent domain issues and, specifically, the types of issues likely to arise in that particular case.  They present a list of six questions one should ask in weighing experience, and I think it's a pretty good list.

Looking out for the Client's Best Interests.  Next, they talk about evaluating whether the potential lawyer is "looking out for my best interest."  Here, I part ways with their recommendations.  They seem to tout hiring lawyers who work exclusively on the landowner or public agency side, expressing concern that "hiring an attorney who works both sides can result in a conflict of interest scenario."  I respectfully, but strongly, disagree with this sentiment.

As litigators, attorneys are often prone to what I'll call the "litigator's fallacy."  By that I mean that as litigators become more invested in a case or issue, it becomes harder to see the other side of it.  At some level, this is a good thing; it makes it easy for us to be zealous advocates for our clients' positions -- something I assume my clients want and expect from me.  By the time I get to trial, I am always a total "believer" in my client's position; I have spent too much time and invested too much of myself into the case to believe otherwise.

But there is a downside.  When I'm hired as an attorney, I get paid not merely for being the best zealous advocate I can be -- but also for providing my clients with good, strategic advice.  If I am so wrapped up in my own client's views that I can't see any other perspective, I lose my ability to function effectively in this crucial role.  I believe that my years of working on both the public and the private side grounds my views in a way that allows me to provide my clients with the best advice possible.

In my experience, eminent domain attorneys who focus solely on either the public or the private side are more prone to the "litigator's fallacy" than attorneys who work, at least occasionally, on both sides.  I cannot recall all of the times during my career in which I've witnessed another attorney (often, my opposing counsel) get blindsided by something that seemed so obvious to me.   Over the years, I realized that this seems to happen most often when the attorney's practice is exclusively on one side or the other.

This does not mean, of course, that every good eminent domain attorney must work on both sides of the fence.  But most of the attorneys I consider to be the most formidable opponents have considerable experience on both the agency and landowner side, and I view a balanced resume as something that should be viewed as a positive sign -- not something about which the potential client should be wary.

Set Expectations.  The Biersdorf article talks about expectations, with questions about how the attorney charges fees and whether the attorney can talk intelligently about the likely magnitude of recovery based on a general description of the property/business.  These all seem like good points.  If the attorney does not have an apparent grasp on valuation issues and damages assessments, that's probably a red flag.

Finally, the Biersdorf firm advocates choosing the attorney that best seems to fit within the above criteria, and "going with your gut instinct" when making a final decision.  I agree with this as well.

However, they end with a final comment that causes me some concern.  They opine that the "best" lawyer may not even be from the state in which the property/business is located, and that "this is okay."   Your eminent domain attorney must be knowledgeable about the laws of your state.  California, in particular, has a complex set of eminent domain rules and procedures, and you should not hire an attorney unfamiliar with California's unique eminent domain laws.   One simple test for this is ensuring that the lawyer you hire is properly licensed in your state.