Revision of Pretrial Orders in Virginia Eminent Domain Cases: Why it Matters

Effective August 1, 2017, the Virginia Supreme Court amended Rule 1:18 to provide for an alternative pretrial order (Form 3-A) for use in eminent domain cases.  Significant deviations from the uniform pretrial order are as follows:

• Process for Nomination of Commissioners. When the use of commissioners (as opposed to a jury or the bench) is selected, the order provides for the insertion of a date by which proposed commissioners should be submitted to the court. Specifically, the order provides that: "If the case is set before a panel of commissioners, each party shall submit nominations of at least six (6) qualified persons on or before ________ so that at least nine (9) commissioners and two (2) alternates can be summoned for trial. Counsel for petitioner shall prepare and submit a sketch order for the court's use in appointing and summoning commissioners for trial." From a practice perspective, it is suggested that the submission of six commissioners be the minimum submitted for consideration to avoid problems associated with commissioners who are not otherwise able to serve. Optimally, the date selected for the submission of commissioners should be well in advance of the statutory deadline (Virginia Code § 25.1-227.2(C)), requiring that commissioners be summoned at least thirty days prior to service.

• Modification of expert deadlines. If requested in discovery, expert deadlines are modified so that the petitioner's/condemnor's experts are due 120 days before trial (instead of 90 days), the landowner's experts are due 90 days before trial (instead of 60 days) and rebuttal experts are due 60 days before trial (instead of 45 days).

• Jury Instructions. Counsel for the petitioner must prepare (and have available at the commencement of trial) the agreed upon jury instructions, and each party may submit contested instructions.

• Transportation for the View. Counsel for the petitioner is responsible for making arrangements with the sheriff's department before trial to arrange transportation for jurors for the view.

The big take away: earlier identification of experts will lead to positive consequences both in and out of the courtroom.

First, the condemnor will have provided to the landowner a copy of a written appraisal report before initiation of condemnation proceedings.  While the landowner may have provided a settlement demand, and even a rationale for it, the landowner's expert report provides often a firmer basis on which the parties can negotiate.  The earlier designation of experts will place the parties in a better position to discuss settlement sooner as the case should be more clearly defined from the perspective of each.

Second, earlier notice will permit more fulsome discovery of experts, especially in circumstances where the landowner identifies an expert in an area that was not thought to be at issue.  Because the deadline for the completion of discovery remains unchanged, the parties can conduct expert depositions and other discovery without as severe of a "time crunch."

Third, the parties, especially the condemnor, will have more time to consider and, where appropriate, be heard on, motions to exclude some or all of the proposed experts and their opinions.  Not knowing whether an expert's opinions will be admitted at trial breeds uncertainty not helpful to either side in consideration of settlement and in trial preparation.  And, practically speaking, it can be very difficult for the court to carve out sufficient time in the final days before trial to allow for a meaningful ruling.

Hopefully, these relatively minor revisions to eminent domain trial practice will serve both the condemning authority and the landowner in providing a fair litigation process.