ATTACKING THE AGGRESSIVE TEAM APPROACH CHAPTER, IN ATTACKING THE TEAM IN EMINENT DOMAIN

ATTACKING THE AGGRESSIVE TEAM

What is amazing about attacking the aggressive team approach, is that usually the other side is so convinced that this is an accepted way to behave, in this aggressive, ostensibly team-oriented, America we inhabit, that they won’t even see your attack coming.  They, these ostensibly independent experts from different specialized disciplines, will openly admit (proud of it!) that they are subordinate members of a trial team.  They will admit (for owner teams) that the lawyer (rather than an owner) hired them.  


They may admit that their lawyer plays something like an aggressive quarterback role for their team (no problem there).  


They may admit that they have worked on the lawyer’s team many times before (a badge of honor even).  They may admit that they have taken orders from the quarterback regarding their opinion.

Many don’t realize, until it’s too late, that just characterizing themselves as being part of a team can be used to cast doubt on the independence and integrity of their opinions. 

Back when I worked for DOT, in some districts they required that one schedule a team meeting.  I objected to calling it a team meeting, and to other aspects of the proceedings. 


It really should be called, if done properly, “group meeting with independent experts and client”, or something like that.  


After a while, the word “team” can just start to sound like the word “conspiracy”.

You can use how the team gets paid in order to show witness bias.  I’ll give you an example.  An appraiser can’t accept compensation contingent upon reporting a property value in a predetermined direction.  USPAP says “the acceptance of compensation that is contingent upon reporting of a predetermined value or a direction in value that favors the cause of the client, is unethical.”

How can you show that the team playing appraiser may have some bias or interest in the outcome of the litigation affecting his value?  You can make the connection between his value, how often he is hired, and how he and the quarterback are compensated.  You can start by asking, who hired the appraiser?  For owners, it’s often the lawyer.     

Then you make a connection between his value, and the size of the lawyer’s fee.  The lawyer gets paid based on a benefit (this part varies by jurisdiction in the US).  A benefit is the difference between an offer and a settlement amount or verdict.  It is often, though not always,  influenced by the difference of appraisal positions.  If his value goes up, influencing a higher settlement, the lawyer’s fee goes up.  “Appraiser’s value goes up, lawyer’s fee goes up, lawyer hires appraiser next time: repeat.”

If the appraiser plays ball, he gets hired next time.  The circle is closed. 

You can show that the appraiser has an interest in playing along, whether it’s for the owner or the government.  


If the appraiser doesn’t play along with the quarterback’s per square foot value play (low for government, high for owners), he won’t make the 'playoffs'.  If he doesn’t execute the damage play (zero for government, big damages for owners), he won’t be back 'next season'.

You can close the circle on the bias and interest of other experts similarly to appraisers.  Start out with the fact that they were hired by the quarterback, and invariably hope to be hired again.  (for condemnor experts, you can rely on the urge to be rehired; government contracts.)  Then go to how their opinion supports or fails to support a higher, or lower, value for the appraisal.  Finally, for owner teams, sketch how the lawyer gets paid based on benefit. If they don’t play along, they don’t play next season.

For some lawyers, the urge to play what I will call a “strong quarterback” role, a role that goes too far, is overwhelming. They have been told that you need an effective quarterback to win, they mistakenly equate “effective” with “strong”.

Can playing on a team under a strong quarterback affect the integrity and independence of an expert’s opinion?  Some trial lawyers see the evil effects of overly aggressive team play, pointing out, for example, how condemning authorities give legal instructions to their appraisers.

Condemning authorities authoring team play memos can be harmful to their cause.

Let’s say you find that there is some evidence of a scheme among the players of one side or the other to bend the facts beyond recognition.  If you attack this conspiracy, they may try to use cases like Venning v. Roe, 616 So.2d 604, to claim you can’t argue scheme, collusion, or falsehood.  The problem with these cases is that in them the improper argument was without record support.  If you have record evidence of falsehood, the Supreme Court has allowed argument alleging it. Murphy v. International Robotics, 766 So.2d 1010.  You might use this case for arguing scheme or collusion as well.

Excessive team meetings can be a tell-tale sign that the quarterback is dictating his experts’ opinions.  Team meetings can be a fertile field for cross-examination regarding the integrity of an expert’s opinion. 

Time records showing excessive telephone conferences between an expert and a lawyer may indicate that the lawyer is the one who actually has the opinion.  

One of my favorites, was the parent tract issue.  I had appraisers tell me, in all honesty, that the client “gave” them their parent tract.  They hadn’t thought to ask whether it was right or not! 

Another of my favorite examples, of strong owner quarterbacking, is the unrecorded lease of adjacent property, prepared by the quarterback.  I call this “fact manufacturing”.  Usually, the ink on this document isn’t yet dry when you see it.  This technique, used for challenging the parent tract for an OT, or for changing a whole taking into a partial to get business damages, has been touted in some circles as a laudable tactic. 

Yet, there may be no independent basis for entering into the lease. The quarterback’s signature is on a sham transaction. Another variation involves changing ownerships to create a parent tract issue.  You can attack these as sham transactions, if they lack an independent basis.  See rule 4-1.2(d) where it says a lawyer should not participate in a sham transaction.

       In order to criticize the aggressive team approach to eminent domain appraising, it may be useful to compare how appraisals are done in the outside world, the world above, with how they are done in the twilight world of condemnation. 

In the typical real world appraisal assignment, the appraiser looks at his assignment as an appraisal “problem”.  In the course of problem solving, the appraiser may, or may not, discover that he needs the services of some other expert.  In the real world, this may actually be the appraiser’s decision. There’s no one there controlling his value, or incorporating his opinion into a larger edifice.

Now let’s look at the appraiser’s role in eminent domain.  He is a subordinate member of a team.   Who assigns responsibilities in team meetings?   The quarterback.

The team is led by the quarterback, not the appraiser.  The team’s main goal is to win, not to solve an appraisal problem.  This is the key thing: how to win, using the appraisal process, and using the appraiser himself, is being decided by the quarterback, not by the appraiser.  The whole appraisal opinion is part of the quarterback’s strategy for winning.  Not only is the appraiser tied to the quarterback by purse strings.  Often he is not even the master of the details of his opinion.

Recently Jim Masterman discussed ethics at an ALI-ABA in Miami.  He asked whether a lawyer could ethically instruct an appraiser to leave out 5 of 15 admittedly comparable sales from his appraisal?  The sense, from audience discussion, was that this was not a big deal.  That shows something of how far we have come.  Look at rule of professional conduct 4-3.4(a).

The quarterback often picks other players for the team regardless of whether the appraiser sees a need for them or not, and without regard for the solution of an appraisal problem.  Some quarterbacks in fact pick the same battery of experts over and over.  Wise counsel avoid this. Condemnors often have project wide contracts for planners and engineers, and these usually stick their noses into a particular case just enough to open the door for the other side to hire a battery of its own.

The appraiser often doesn’t decide the theme, even if he happens to think of it initially.  It’s often decided by the quarterback.  The quarterback, after all, is calling the plays.  Yet the theme can set the script for the appraisal.  Recall our quote from Jacobs and Camins, “... The preparation of the appraisal report is part of a game plan”.  Doing an appraisal as part of a game plan can take the “independent” out of independent fee appraiser.  Where have you heard that before?

Planners’ and engineers’ roles are similarly subordinate.  Often, they are not the masters of their fate.  Planners find uses predicated not on reality, but rather on the side they’re on.  Engineers find, or gloss over, problems, design cures, and look at sites, based on where they sit, not on what they see.    

You can question their integrity beginning with how they were hired.  They weren’t hired by the appraiseror the owner, but rather by a trial lawyer.  That shows that they often were not hired as part of a real world solution of an appraisal problem, but rather as expert witnesses at the behest of a trial lawyer. 

You can sometimes draw inferences from the fact that the lawyer, not the appraiser, hired them.  They weren’t asked to assist in an appraisal problem, or to report to an owner, but rather to work for a lawyer on the lawyer’s team.  Appraisers are ethically obligated not to communicate their opinion to the owner without the lawyer’s consent.  You may find that often they haven’t even met the owner, yet they may have had four or five team meetings.  They may have no idea whether the owner has ever looked at their reports.

This can work particularly well if the owner may need an actual real world cure, yet his expert witnesses have been asked to do nothing but testify in the case.  It really casts them in a bad light.  This is especially true if there are other experts working on a real cure somewhere. 

However, criticizing the other side’s experts for not being in the real world can really backfire if yours are on another planet too.

Some colorful examples of questionable practices are: a case of an owner having concrete development plans, but claiming inconsistent severance damages; an owner’s pending sale of the property during litigation, yet the owner was claiming catastrophic damages in the case; an attorney giving a legal instruction to an appraiser to ignore obvious severance damages, even though the business damage expert found business damages, indicating a patent inconsistency.  These practices could be viewed as altering or concealing evidence under the rules of professional conduct.