1972, March, Pg. 13. Discovery in Eminent Domain.

• Author: by John H. Williamson

1 Colo.Law. 13

Colorado Lawyer

1972.

1972, March, Pg. 13.

Discovery in Eminent Domain

131972, March, Pg. 13Discovery in Eminent Domainby John H. WilliamsonJohn H. Williamson, Denver, represents the Denver Urban Renewal Authority. He was chief draftsman of Article 7, Chapter 50 of the Colorado Revised Statues (Eminent Domain by Urban Renewal Authorities---Vesting of Title).This article is limited to a discussion of discovery procedures relating only to the issue of compensation in eminent domain cases. Collateral issue in eminent domain proceedings not directly bearing upon the issue of compensation will not be considered.

Purpose of DsicoveryThe pleadings in eminent domain cases are wholly uninformative on the issue of the amount of compensation to be paid for the property taken. Effective discovery is uniquely necessary in eminent domain proceedings if the case is to be prepared and tried properly. The purposes of discovery in eminent domain proceedings can be summarized as follows:(1) Define and narrow issues to be litigated

(2) Prepare for cross-examination

(3) Prevent surprise

(4) Shorten trial time

(5) Prepare for rebuttal

(6) Promote settlement

(7) Determine the method of trial.

Historically, discovery procedures have been ignored in eminent domain cases. As recently as 1965 one authority commented:"An extreme example of going to trial without issues or issues only vaguely defined is the usual eminent domain proceeding."(fn1)

In recent years, however, efforts have been made to correct the situation. The rules of civil procedure relating to discovery have been amended in many states (including Colorado) and the federal courts. Many recent cases(fn2) have extended the liberal construction given to discovery rules to eminent domain cases and, in the process, started to erase the aura of privacy that has historically shrouded the real estate appraisal from foreign scrutiny. In Colorado, the Public Records Act,(fn3) passed in 1968, has been a major step forward.

Probably the most realistic and practical purpose for discovery in eminent domain proceedings is preparation for cross-examination of the expert real estate appraiser. Joseph Montano's article in the January 1972 issue of The Colorado Lawyer clearly pointed out the necessity of discovery to prepare for a thorough and effective cross-examination of the expert appraiser.

Discovery is the only effective insurance against surprise at the time of trial. Until the opposing side's case is thoroughly discovered, a knowledgeable settlement is impossible. It is difficult to plan or prepare for rebuttal testimony until the evidence to be rebutted is examined. Effective discovery will generally shorten trial time by weeding out the issues not in dispute. Occasionally, after discovering the nature of issues to be resolved, the parties will decide that the issues can best be resolved

14by a commission instead of a jury, or by the court instead of by a commission.

Authority for DiscoveryIt is probable that you will meet resistance from opposing counsel in your efforts to compel discovery. A brief summary of legal authority supporting discovery follows.

In 1968, Colorado adopted the Public Records Law, now found in the Colorado Revised Statutes. C.R.S. (1963) 113-2-4(2) provides that the state, or political sub-division thereof, may decline to disclose the contents of real estate appraisals prepared relative to the acquisition of property for public use until title to the property has passed to the condemning authority, except that the contents of such appraisals shall be available to the owner of the property at any time and except as provided in the Colorado Rules of Civil Procedure. The statute goes on to provide that if condemnation proceedings are instituted to acquire the property, the owner who receives the condemning authority's appraisals must make his own appraisals available to the condemning authority. The statute, in effect, gives the property owner the option of whether to exchange appraisals. If the owner has no appraisal he is still entitled to examine the appraisal of the condemning authority. The statute tips the discovery scales in favor of the property owner, as it creates no rights in the condemning authority to discover the property owner's appraisals until the property owner demands to see the appraisals of the condemning authority. Apparently the statute only applies to written appraisals.

Rule 34 of the Colorado Rules of Civil Procedure provides that any party may serve upon any other party a request to produce, for inspection and copying, any designated documents which constitute or contain matters within the scope of Rule 26(b). Rule 26(b)(1) provides that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending action, including the existence, description, nature, custody, condition, and location of any documents and the identity and location of persons having knowledge of any discoverable matter. Rule 26 (b)(3) provides that a party may obtain discovery of documents otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or that other party's representative (including his attorney) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without...