In the video below, Dan discusses hiring an attorney for eminent domain
The government might be contemplating the acquisition of your property for a highway improvement project, or maybe for a new city-wide sewer system. Worst case scenario is the condemnation of your property for an economic development project. Regardless of the situation, this unwanted government intrusion into your life will force you to make decisions about your rights; do you hire an attorney or do you handle the situation on your own?
Let’s be honest, not everyone needs to hire an attorney to handle their eminent domain case. If you are challenging the government’s right to take, or if you are pursuing an inverse condemnation case, you will need to hire an eminent domain attorney. When dealing with public use condemnation cases, whether or not you need to hire an attorney depends upon the amount offered for the portion of land taken, and damages done to any remaining parcel (this topic will be discussed in another blog entry). These damages are the most complicated issues at hand and directly relate to the amount of compensation owed to a property owner.
Don’t be surprised if you are unable to quantify or assess your damages; no one expects you to be an expert on land valuation in eminent domain cases. In fact, the government is counting on this. Most eminent domain attorneys will conduct a no-cost case evaluation to determine the extent of your damages.
If you determine you need to hire an attorney, you should know that hiring the right eminent domain attorney is not always an easy task. Choose wisely and consider these top 3 criteria when determining which eminent domain attorney to hire:
1 – Experience
Consider the following questions when calculating the level of experience an attorney has:
- How many eminent domain cases have they handled?
- How many eminent domain cases have they taken to trial?
- Eminent domain cases handled on the appellate and State SC level?
- What types of properties have they handled?
- What types of issues have they dealt with?
- Which states have they taken cases?
Question your potential attorney, and have them review your appraisal and conduct a case evaluation. An experienced eminent domain attorney will accurately assess and explain your damages and, in most cases, estimate the amount owed to you.
You should ask them for examples of cases they have handled that deal with issues similar to yours. Also, many states have an attorney fee recovery statute; this should be explained in further detail by your potential attorney.
You should know that only a small percentage of eminent domain cases go to trial, and when an attorney takes your case, they won’t know whether or not it will proceed to trial. However, a good eminent domain attorney will plan their strategy around going to trial and will therefore be prepared in the event that this occurs. If your case goes to trial, does your attorney have the experience necessary to persuade a judge and jury? Are they planning appropriately and are they willing to go to trial?
2 – Are They Looking Out for my Best Interest?
Is your attorney looking out for your best interest? Inquire about who your potential attorney represents in eminent domain cases. Do they represent only property owners or do they represent the condemning authority as well?
Hiring an attorney who works both sides can result in a conflict of interest scenario; the attorney has worked for the government in the past and/or is friendly with the condemning authority’s attorney. There are many good attorneys who represent both the condemning authority and the property owner, so be aware of this situation and decide whether or not you are comfortable with it before hiring an attorney.
Keep in mind that hiring a local attorney who has only handled a few eminent domain cases can result in a similar situation. This attorney might have ties to the local government, which could put undue pressure on this attorney to settle the case.
3 – Set Expectations
In addition to understanding the issues surrounding your case, you should know how much money you are entitled to receive. A knowledgeable eminent domain attorney will discuss their strategy with you; tell you how much money they are pursuing and what the estimated final award of damages will be.
- If you expect your attorney to take your case to trial, then make sure you hire a trial lawyer.
- Does your attorney charge a greater fee to take a case to trial? Most eminent domain attorneys will charge a contingent fee that covers all work through trial.
- You should also know the approximate amount of money you will need to spend on costs so you are not surprised when you receive an invoice for the second appraisal conducted on your property. An attorney should discuss fees and costs with you before formally representing you.
If you have talked to a few attorneys that meet these criteria, I suggest going with your gut instinct and choose the attorney you trust the most. You may find this attorney to be located in another state; this is okay! This likely means the attorney(s) have experience in many jurisdictions and have more opportunity to handle a wide variety of cases.
How Much does an Eminent Domain Attorney Cost?
The most blatant eminent domain abuse occurs when the condemning authority makes “low ball” offers. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. This problem is particularly acute for property owners with “small claims”. These are claims where just compensation may be significantly more than the offer (100% or more), but the dollar amount is relatively small.
An owner can only afford to hire an attorney in this situation on a contingent fee basis, but many attorneys won’t take such a case or will only argue to go so far as negotiating a settlement. The condemning authority knows this and has little incentive to move off the “low ball” offer. The motivation to negotiate honestly, and even avoid low ball offers to begin with, increases significantly if the condemning authority can be liable for the attorney’s fees incurred by the property owner.
Typically, eminent domain attorney’s will review your offer and appraisal at no cost to determine just compensation. In a standard eminent domain case, your eminent domain attorney will take the case on a contingent fee. In most states, your attorney’s fees and costs can be recoverable. To find out about your specific state, check out our eminent domain by state guide.
These statutes allow property owners to recover 100% of their claim by forcing the government to pay their attorney’s fees and in some states, their costs. Even if your state does not require the government to pay costs and fees, you can still hire an attorney on a contingent fee basis. With a contingent fee structure, the attorney only gets paid if they are successful at obtaining additional just compensation. In this situation, their fee is typically one-third of the recovery. Learn more about our fees.
Lastly, whether or not you hire an attorney to challenge the government’s right to take, to pursue an inverse condemnation claim, or to pursue additional damages, you should know that in some states, attorneys fees and costs could be paid for by the government.