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Virginia Supreme Court Creates New Uniform Scheduling Order for Eminent Domain/Condemnation Cases

September 11, 2017

Virginia Supreme Court Rule 1:18 governing scheduling orders in civil cases was recently amended by the Virginia Supreme Court, effective August 1, 2017. The amendment creates a new Uniform Condemnation Scheduling Order (the “New Scheduling Order”) that may ease the time crunch facing condemnors and condemnation counsel face in finding and disclosing rebuttal witnesses.  A link to the new Rule 1:18 is included at the end of this column. 

The Virginia Supreme Court created the New Scheduling Order in response to dissatisfaction expressed by various condemnors’ counsel and landowners’ counsel as to the application of the standard Rule 1:18 Uniform Pretrial Scheduling Order, particularly as it related to expert disclosure in eminent domain cases. Eminent domain/condemnation is an unusual area of the law in that there is no clear “plaintiff” and “defendant.” See, e.g., Hamer v. School Board, 240 Va. 66, 393 S.E.2d 623 (1990), which discusses the process in terms of an ascertainment; see also Va. Code 25.1-230 (“The body determining just compensation shall in each case ascertain the amount of just compensation to which a party is entitled as follows …”) (emphasis added). Often under the Uniform Pretrial Scheduling Order, the condemnor and counsel for the condemnor only saw the landowner’s case on compensation 60 days before trial, which only gave 15 days to find rebuttal experts and respond, often putting the condemnor at a significant disadvantage. 

Given that eminent domain cases require experts more often than other types of litigation, the New Scheduling Order has different terms than the Uniform Pretrial Scheduling Order, particularly regarding deadlines for designation of experts. The existing Uniform Pretrial Scheduling Order requires plaintiff’s experts to be identified on or before 90 days before trial, defendant’s experts to be identified on or before 60 days before trial, and experts responsive to new matters to be designated no later than 45 days before trial. The New Scheduling Order requires that in eminent domain/condemnation matters, the petitioner’s experts be identified on or before 120 days before trial, defendant’s experts be identified on or before 90 days before trial, and experts responsive to new matters be designated no later than 60 days before trial. 

The New Scheduling Order should hopefully ease some of the time crunch relating to rebuttal experts and motions practice with regard to experts.  To veiw the new Rule 1:18, click here.

Ross Greene is a Pender & Coward attorney focusing his practice on eminent domain/right-of-way law.  Please contact him with questions at rgreene@pendercoward.com or (757) 502-7333.

Filed Under: Blog Category 1