7.5 Practice Tips for Condemnation Appeals

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

7.5 PRACTICE TIPS FOR CONDEMNATION APPEALS

7.501 Remember Your Audience. When preparing appellate briefs and oral arguments, remember that your audience comprises legal gen eralists. Very few persons with a substantial background in condemnation practice are appointed to the Supreme Court. Because of this, it is imperative that you avoid condemnation-specific jargon, which may not be familiar to the justices, no matter how second-nature it is to you. ⁵¹

7.502 Standard of Review. Remember, too, that appellate courts review the record for legal error, not factual error. In the trial court, the most common standard requires proof by a preponderance of the evidence, and this standard applies to the key issues of damage to the residue and enhancement in condemnation cases. ⁵² But once the factfinder determines what the facts are, appellate courts are extraordinarily reluctant to touch such a finding. This principle is founded upon a statute ⁵³ and finds confirmation in legions of case law. ⁵⁴

The reason for this deference is as old as appellate review itself: The finder of fact can see and hear witnesses testify, and thereby determine credibility, while the appellate court can only review the cold transcript. ⁵⁵ This principle is perhaps followed more rigidly in the eminent domain context than elsewhere because the jurors almost always view the property, while the justices do not. ⁵⁶

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Thus, appeals challenging the jury's conclusion as to things like the quantum of just compensation are fraught with difficulty stemming from the standard of review. On appeal of a chancellor's decree approving a commissioner's report, the decree will be affirmed unless it is plainly wrong or without evidence to support it. ⁵⁷ Only if a just compensation award "bear[s] no reasonable relation to the testimonial evidence and show[s] prejudice or corruption" on the part of the jury will the award be set aside. ⁵⁸ If the verdict is supported by some credible evidence, even if that evidence pales in comparison with evidence to the contrary, the appellate court will not disturb the verdict.

Attorneys seeking reversals of condemnation awards are thus much better off focusing on legal rulings made by the trial judge, such as the admissibility of evidence or the granting or refusal of a key jury instruction. These rulings are reviewed under far less deferential standards of review, ⁵⁹ and are thus much more likely to lead to reversal than a challenge to the sufficiency of the...