November 2012 Bar Bulletin
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November 2012 Bar Bulletin

Ten Quirks of Eminent Domain Litigation for Landowners

By Jamila Johnson


Litigators are notorious for diving into areas of law that are new to them. "Litigation is litigation," they say as they wade into representations without testing the strength of the current. These three words, while sometimes accurate, will lead to disaster in certain areas of law.

Representing a landowner in an eminent domain lawsuit is questionable territory for the generalist litigator. Originating from the United States and Washington constitutions, an eminent domain practice is riddled with constitutional questions and quirky alterations to the common lawsuit. These eminent domain quirks can lead to mistakes for the inexperienced attorney from the very start of the suit and continue through trial.

As a law school refresher, the government cannot take private property for public use without paying the landowner just compensation. This concept comes from the Fifth Amendment of the U.S. Constitution, and Article I, Section 16 of the Washington Constitu­tion. A lawsuit arises when the government and the landowner cannot come to an agreement on what that just compensation is.

It is not uncommon for a landowner to turn to the litigator or transactional attorney who has helped them in the past. And so the landowner sends the pleadings to her trusted law firm. The firm has a strong litigation team and accepts the case. But the team's strength in other areas of litigation could lead attorneys into a false sense of confidence.

Here are only 10 of the many ways eminent domain suits diverge from common civil litigation.

The Nomenclature Is Different. Receiving an eminent domain lawsuit is much like falling through the rabbit hole. The opening pleading is not called a complaint. Instead the government's filing is a "petition."

An attorney new to condemnation may overlook another difference in that first pleading: The government is not the "plaintiff," but is the "petitioner," and the landowner is the "respondent." The pleading does not seem to be alleging anything and frequently barely mentions the property owner.

Dorothy is no longer in Kansas.

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