The Landowner’s Deposition in An Eminent Domain Case

This Article is written by Owners’ Counsel of America for general informational purposes only. It is intended to assist landowners in understanding the deposition process, as well as what to expect and how to prepare. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain lawyer on the matters covered herein.

What is a Deposition?

A deposition is the legal term for the taking of sworn (meaning under oath) out-of-court oral testimony of a witness that is reduced to a written transcript for later use in court or for discovery purposes. In a condemnation case depositions are typically taken of the landowner, the appraisers, and other lay and expert witnesses. 

Because litigants and their lawyers in a condemnation lawsuit want to avoid any surprises at trial in terms of what the evidence, testimony and exhibits will be, taking depositions is one common way of ‘discovering’ information about matters that will likely come up at trial. 

In situations where the deposition witness testifies differently in court than how the witness testified at his or her deposition, the deposition testimony can also be used to impeach or discredit the witness. This is one reason why it is very important to adequately prepare for a deposition.

Why Would the Condemning Authority Want to Take A Landowner’s Deposition?

There are several reasons why the attorney for the condemning authority may wish to take the deposition of the property owner in an eminent domain case. Two of  the most common reasons are discussed below:         

General Information Purposes: 

One reason why the landowner’s deposition may be taken is to find out facts that are relevant to matters that will be raised at trial. In the vast majority of eminent domain proceedings, the most relevant matters at trial will be the value of the property being taken, and, in cases where damages to remaining property are being claimed, the reason and extent of such damages. In such situations, the landowner’s deposition will likely  focus on all aspects of the property and ownership that contribute to the issue of value and damages.

Landowner As A Witness: 

Another typical reason that the condemning authority may choose to take the landowner’s deposition in a condemnation proceeding is if the landowner intends to give witness testimony in the case. Again, to avoid surprises at trial, the condemning authority will want to know the nature, extent and scope of the owner’s anticipated testimony.  

There are several reasons why an owner may wish to be a witness in the eminent domain case. One reason is to provide testimony about the characteristics and attributes of the property relevant to the issue of value or damage claims being made. Another reason may be that the owner intends to provide an opinion of value of the owner’s property in order to support a compensation award. See “Owner Testimony and Valuation Opinions in an Eminent Domain Case” under Featured Articles. 

Whatever the reason, the condemning authority will want to take the landowner’s deposition to find out exactly what topics or subjects the landowner will be testifying about, as well as what facts and assumptions the landowner will be relying on to support such testimony.

What Will Be the Scope of the Deposition? What Type of Questions Will Likely be Asked?

The nature, scope and type of questions that are likely to be asked of the landowner in a deposition will depend largely on the purpose of the deposition. For instance, if the purpose is simply to uncover general information about the property that relates to its value and/or a claim of damages, the owner will be questioned about anything relating to those subjects. By way of example, questions are likely to concern the physical attributes of the property, the zoning and land use restrictions relevant to the property, when and under what circumstances was the property purchased, what the property has historically been used for, the state of the landowner’s title, and many other factors similar in nature.

In situations where the focus of the deposition will be on the landowner’s anticipated testimony as a valuation witness, however, expect the majority of the condemnor’s questions to deal with the details of the owner’s valuation opinion, together with all the underlying factors that the owner has considered in support of the opinion. For instance, the condemnor’s attorney will want to know exactly what the owner’s opinion of value or damages will be, what date of value did the landowner use for purposes of formulating the opinion, what comparable sales or other market transactions did the landowner rely on, what attributes or characteristics of the property support such an opinion, and many other questions relating to the valuation testimony. Once again, refer to “Owner Testimony and Valuation Opinions in an Eminent Domain Case” under Featured Articles for more information about this topic. 

How Should An Owner Prepare for the Deposition?

Being well prepared in advance for the deposition is the absolute key to doing a good and effective job. The landowner should begin by thinking about what the questions and issues will be, and how best to tell the landowner’s story in response to those questions and issues. Reviewing and examining in advance any documents or exhibits that the landowner will be questioned about during the deposition is also very important. Knowing what opinions other witnesses in the case are likely to give is important as well. In essence, knowing as much about the facts and background of the case and issues to be presented will place the landowner in the best possible position to answer the questions that are likely to come up. 

OCA lawyers have participated in hundreds of depositions with their landowner clients, and therefore they are well experienced in what to expect in the way of questions from a condemnor’s attorney. As a result, they know exactly how to prepare a landowner for his or her deposition. 

Preparation will generally include the attorney talking and/or meeting with the landowner to discuss some of the questions that are likely to come up and how the landowner would respond to such questions. During these discussions the lawyer and landowner can also review any exhibits or documents that the opposing lawyer will be asking the landowner about, so the owner is not surprised when those documents are presented at the deposition for comment. 

The lawyer will also use this time to talk more about the deposition process in general, providing helpful advice and tips to the landowner, such as the items discussed below.

What Are Some Helpful Tips and Advice About the Deposition?

Here’s a good list:

Not Showing Too Much Emotion. As a landowner facing the taking of your property, you are likely to be experiencing many emotions, ranging from confusion, to consternation, to outright anger.  It is okay to exhibit some emotion during your deposition, but try not to get so angry or defensive that it negatively effects how you may respond to the questions. 

Carefully Listening. Listen carefully to the question that the condemnor’s attorney poses and understand it before you answer. Sometimes lawyers ask questions that don’t make sense or include two questions in one. But in order to answer a question accurately and truthfully, you must understand it first. Therefore, don’t be shy about asking the lawyer to repeat or rephrase a question you don’t understand. 

Do Not Volunteer. A deposition is not like a normal conversation where people may add information beyond what is necessary to answer a question. In a deposition you want to restrict your responses to only the precise question that is asked. If the condemnor’s lawyer needs more information, he or she will ask follow up questions. 

Verbal Responses. The court reporter will be sitting close to you transcribing everything you say.  This can be done accurately if you wait for the question to be finished before you start answering it. Also, your answers must be verbal and understandable. This means saying yes or no, rather than uh huh. This also means not shaking or nodding your  head in response to a question.

No Guessing. You should never guess or speculate in answering a question. No one expects you to know everything, and the worse thing you can do in responding to a question is to guess about something, particularly if you guess wrong. Giving the best answer may mean simply saying, “I don’t know” or “I don’t remember.” 

Consult with Attorney. Some depositions can go on for several hours. If you get tired, confused, hungry or need to talk to your attorney, don’t be shy about asking for a break.

Correct Mistakes. Although some changes can be made to a deposition after it has been fully transcribed by the court reporter, it is better to correct your testimony while the deposition is going on. Thus, if you realize that you made a mistake in prior testimony or need to add something, tell your lawyer that you need to do so. Then, the testimony can be corrected or supplemented so that the transcript is completely truthful and accurate.

Tell the Truth. Most importantly, tell the truth. You are under an oath to tell the truth just like you would be in court. Being caught having said something inaccurate, whether intentional or not, can hurt your case.