The Oklahoma Bar Journal November 2022

PRETRIAL MOTIONS

biases the potential jurors have for awarding large sums of money for land and associated damages. The attorney for the condemning author ity should question whether there are biases associated with the emi nent domain process. Many indi viduals believe it is fundamentally wrong for the government or other authorized condemning entities to acquire private property through eminent domain proceedings. In opening statements, highlight the key points of your case to the jury and tell them what to watch out for during the trial. This is a good opportunity to explain away a weakness in your case and what evidence the jury should look for regarding that topic. If you believe the opposing experts have holes, ask the jury to question all the experts and their credentials and methodologies. If your case has a significant advantage, point it out to the jury in the opening state ment. Remind them to compare this strength of your case to how the other side views this issue.

missing, will be of great aid when challenging the appraiser’s creden tials as an expert or attacking the appraiser on cross examination.

Just as with any other civil case, motions in limine are a great opportunity to shape the case in the most fashionable way possible for your client. As stated previ ously, eminent domain cases can present unique challenges, espe cially in partial taking cases. There are no restrictions as to the type of motions in limine a party may file with the court. Additionally, the use of expert witness testi mony from appraisers and other professionals gives an attorney the opportunity of challenging the credentials and/or methodology via a Daubert challenge. An eminent domain trial pro ceeds like any other case except that the landowner, the defendant, starts the trial because they have the burden of proof to prove their dam ages. From the opening moments of trial, it is crucial to establish your credibility and theory and themes of your case with the jury. TRIAL

NEGOTIATIONS AND SETTLEMENT

Throughout the eminent domain case, the possibility of settlement continually exits. A helpful tool in finding a settlement is either settlement conferences or mediation. As we all know, lit igation is expensive. A settlement conference or mediation is an ideal place for all parties to come to the table and have an independent party evaluate the case to aid in finding a possible resolution. In settlement discussions, the attorney for the condemnor should consider how the settlement of one case will affect the other eminent domain cases on the same project. The attorney for the landowner should consider the settlement conference or mediation to be the last real chance to save their client money prior to trial because of the time and costs incurred in litigation. It is increasingly com mon in eminent domain cases that both sides agree that mediation or settlement conference is required prior to going to trial. It is essential both sides rec ognize that whoever is chosen to help yield a potential settlement for the case, it is imperative that the mediator has a complete understanding of the complexities of eminent domain law. If this person is unfamiliar with emi nent domain cases, a majority of the time will be spent educating this person instead of finding a resolution. An experienced indi vidual can access each side’s case and point out the strengths and weaknesses to both parties in an attempt for settlement.

Demonstrative exhibits are essential to tell your story to the jury. It is highly unlikely the jury will be allowed to view the property being condemned. Thus, the demonstrative exhibits allow for the attorney to bring

Voir dire is the first opportunity to start telling your story. The attor ney for the landowner should begin with telling the landowner’s story and why this property is special and unique. The landowner’s attorney should attempt to flush out any

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THE OKLAHOMA BAR JOURNAL