With right-of-way acquisition for the US 290/Hempstead Highway Corridor project slated for 2009, this is a good time to resolve to hire a Texas condemnation attorney. Before you do, here are ten questions you should ask before considering an attorney to represent your interests in a condemnation case.
What is your relevant experience?
A condemnation case represents the property owner’s one and only opportunity to be compensated for the taking of some or all of its property. For many property owners, it is the most important lawsuit they will ever be involved in. The most important decision the property owner will make is the attorney that will represent it. Before hiring an attorney to represent you in a condemnation case, you have to be certain the attorney has the relevant experience handling these specific kinds of cases. This may or may not be the first lawyer that contacted you or the lawyer with the most information about the project that has necessitated the taking of your property. The only way to find out is to ask.
How many condemnation cases have you tried to a jury verdict on behalf of property owners?
Many cases are resolved short of a jury trial. However, experienced practitioners will tell you that some cases simply have to be tried to achieve the compensation to which the property owner is entitled. Your attorney’s ability and experience in trying these cases puts you in the best position to resolving your case without the effort and expense of a jury trial. You need to know how many times the attorney has been to the courthouse representing property owners. If the answer is ten or less, it is doubtful that the attorney has the relevant experience to represent you in your case.
How many special commissioners’ hearings have you attended on behalf of property owners in the last two years?
All condemnation cases go through an administrative hearing before three special commissioners appointed by the trial court to make a preliminary determination of compensation. The number of hearings an attorney has attended on behalf of property owners is another indication of whether that attorney has the relevant experience.
What percentage of your work is devoted to the representation of landowners in condemnation cases?
Condemnation is a specialized area of the law. Because of the many loopholes and complexities involved, it is not an area that lends itself either to the dabbler or to the general practitioner. Your attorney should be able to confirm that he or she spends more than 50 percent of his or her time representing property owners in condemnation cases.
Have you been involved in any reported decisions involving condemnation cases?
This is another indication of an attorney’s relevant experience. Just as some cases must be tried, sometimes cases are appealed. Your attorney should be willing to pursue your case to the lengths necessary to obtain the compensation to which you are entitled. The best indication of whether an attorney is able to do this is whether he has done it before.
Has the attorney handled cases like yours?
Condemnation cases are like property: no two are the same. However, similar issues arise in similar cases, and it can be helpful if your attorney has handled the same type of case as yours. For example, powerline or pipeline cases present very different issues from highway or roadway condemnation cases. Additionally, whole-takings cases are very different from partial-takings cases, particularly where there are issues of damages to the remaining property after the taking. Takings from improved properties present very different circumstances and issues than takings of raw, vacant land. Finally, the particular highest and best use of your property is important to how it will be impacted by a taking. Issues that are important to an industrial property may not have as much impact to a retail property, and vice versa.
How will the attorney’s fee be calculated?
Any attorney you hire will expect to be compensated for the time and effort necessary to assist you in obtaining the compensation to which you are entitled. It is important to understand that a property owner cannot recover its fees and expenses incurred in a condemnation case; all a property owner recovers in the typical condemnation case is its compensation for the taking. Some attorneys will charge by the hour, others will charge a contingency fee. While the appropriate fee arrangement will depend on the facts and circumstances of the case, you need to be aware that when an attorney charges by the hour for the time expended on the case, you run the risk that the fees paid to the lawyer may exceed any increase in compensation obtained through the attorneys’ efforts or, worse, the amount originally offered. In most cases, an experienced condemnation lawyer will represent the property owner for a percentage of the amount recovered over and above the original offer. Under this arrangement, the attorneys’ fees will never exceed the increase in compensation or the amount of the offer.
Do you have any clients I can talk to as a reference?
An experienced attorney in this area should be able to provide a number of client references who can give you their own perspective of the attorney’s ability and reputation in this practice area.
Are there any appraisers I can talk to as a reference?
Almost every condemnation case will require the property owner to hire an appraiser to estimate the compensation to which it is entitled. Like condemnation law, appraisal in condemnation cases is a specialized practice, and there are a limited number of appraisers with the required experience in both appraising property and testifying as to values. The result is that the appraisers who work on condemnation cases have more knowledge than most about who are the most experienced attorneys in this area.
Who are other experienced attorneys in this practice area?
Because there really are very few attorneys with the relevant experience in condemnation law, they all know each other—at least by name and reputation. An experienced attorney should be willing to give you the names of other experienced attorneys in this area so that you can make a fully-informed decision on the best fit for a representation of your interests.
The selection of the right counsel may be the most important decision the property owner will make in a condemnation case. It is a decision that should be made with care and with as much information as possible.
For more information on this, and related, topics, please visit V&E's Condemnation and Land Use practice page.