John Tierney, The New York Times. Magazine, (August 17 2011).
The short answer for lawyers and judges is: Yes. This occurs when you are working a block of time without sufficient breaks practicing a core function of lawyers—making choices what to say or do next. Preparing for hearings, drafting documents, and participating in remote video proceedings is the daily life of the legal profession. Decision making occurs not only by individuals working alone, but also in groups, such as committees, client counseling, and administrative or judicial panels issuing findings and determinations.
In 2011, two professors studied outcomes in over 1,100 cases decided by a panel of judges on two Israeli parole boards, which consisted of a judge, social worker, and a criminologist. What was surprising is that the grant or denial of parole was correlated with the time of day of the decision! The process of hearing and deciding cases in a serial manner resulted in “decision fatigue,” (coined by journalist, John Tierney), with the board being more likely to deny parole later in the day. The researchers concluded denying parole was simpler than using the energy to make a tougher or more complex decision; keeping the status quo left risk-free options to eliminate the potential that former prisoners might harm others.
Wikipedia states that decision fatigue “refers to the deteriorating quality of decisions made by an individual after a long session of decision making” because of low mental energy or the volume of decisions in the assembly line. Decision fatigue may stem from having to make additional choices tires the brain in such a way that each subsequent choice becomes increasingly taxing. The brain creates shortcuts to conserve energy. When it is depleted, fast and careless choices may occur without much reflective analysis. The brain becomes lazier, impatient, or impulsive. It is easier to do nothing by avoiding change. This is commonly referred to as decision paralysis. There are other variants, including delegating the decision to others or being passive while others decide and going along with those choices.
A related, but not identical concept, was developed by Professor Roy F. Baumeister, a social psychologist at Florida State University in Tallahassee, Fla., called “ego depletion.” The theory derived from many experiments contends that there is a finite store of mental energy for exerting self-control and that the brain is like any muscle which become fatigued with use. It may arise from low glucose levels. Decision fatigue has been hypothesized to be a symptom, or a result of ego depletion.
Prof. Carol S. Dweck of Stanford University, on the other hand, challenges ego depletion theory based upon research from a 2010 study suggesting that “a person’s mindset and personal beliefs about willpower determine how long and how well they’ll be able to work on a tough mental task.”
Decision fatigue may derive from unconscious, psychobiological processes, in the context of a persistent cognitive, emotional and decisional loads. It is not a trait or character deficiency or immutable. It comes and goes dependent on the decision making paradigm.
The more decisions made at one “session” reduces the ability to concentrate and critical thinking. Making multiple decisions in a continuous manner is stressful. It can be exhausting and cause people to mentally shut down. The responsive phrase “whatever” comes to mind when people do not want to engage, dialogue, and debate a point—just move on. This is commonly referred to as “defaulting” to a standard option or choices made by others.
My own, and anecdotal, experience is that the shift from paper documents to computer screens is more physically and mentally taxing. There is little opportunity to daydream or pretend to be engaged when you face is plastered on multiple screens without any idea of what participants are looking into your eyes. Staying motionless and stoic are Zoom-skills being learned in a continuous, and likely, mindless, manner. Screens emit lights across a broad spectrum; paper is bland in comparison. I can participate in a full calendar day mediation process or arbitration hearing with the fraction of the energy expended in video conferencing, regardless of the number of screen-breaks. In person, we are able to move more, fidget, turn out heads about, and recover quickly when our minds wander to far-off places or across time. Of course, if you can just blank the screen and mute yourself while superficially engaging, personal energy is conserved. If you are the advocate, or neutral running the meeting, zoning-out while zooming-in is highly problematic.
Representing Estate and Trust Beneficiaries and Fiduciaries 2025, co-sponsored by the American College of Trust and Estate Counsel (ACTEC), is a nationally recognized program that goes beyond the usual estate planning topics to focus on key issues, new developments, court trends, and practice tips in estate and trust administration and litigation.
Through practical instruction and real-world examples, you’ll learn how to confidently navigate even the most complex issues in estate and trust litigation. This program examines the shifting landscape that representatives of estate beneficiaries and fiduciaries must navigate, focusing on industry practices that are, or are likely to be, the basis of conflict and challenge.
This year’s program will explore the following:
A fiduciary litigation review of key trust and estate appellate decisions nationwide
Litigating disputes in the creation, administration, and termination of irrevocable trusts
Creating indemnification agreements that safeguard trustees from potential liabilities
Using common interest attorney-client privilege to foster collaborative estate planning
Navigating strategic asset distributions to achieve financial goals and minimize risks
And much more!
No matter your role – advising settlors, fiduciaries, or beneficiaries – this one-of-a-kind program will equip you with the knowledge and strategies you need to effectively represent your clients. Gain expert insights into the unique challenges of representing clients in estate and trust disputes.
Environmental Law 2025 – now in its 55th year – is taking place on February 20-21, 2025 in Washington, D.C., in person or via live webcast.
Environmental Law 2025, co-sponsored by the Environmental Law Institute, will feature integrated panels of experienced practitioners, regulators, leading academics, and environmental advocates that will share their insights on current and future challenges and opportunities, helping you be the best advocate for your clients.
Taking place on the heels of a major election, the 2025 conference will be one of the first to explore the potential impacts of a new administration and Congress on future environmental regulation and legislation. Our carefully selected, seasoned panelists will provide balanced perspectives on the most pressing issues facing today’s environmental lawyers.
Explore the latest developments in natural resources (air, water, species), climate, chemical, energy, and environmental justice; what’s happening in Congress and the Supreme Court, and what we anticipate under a new presidential administration.
Our distinguished faculty will provide exclusive insights on each of the major areas of environmental law, including:
Post-Election Regulatory Changes: What the new administration means for the future of environmental law.
PFAS Trends: Insights into emerging litigation and the designation of PFAS as a hazardous substance.
Advancing Environmental Justice: How equity initiatives are shaping new policies.
Supreme Court Decisions: Analyzing the environmental cases on the docket this term and their potential impacts.
And much more!
This high-level program will get you up-to-date on the key developments arising in each of the major areas of environmental law and their intersections and prepare you for what is to come. Register today and be among the first to hear what lies ahead in a pivotal year for environmental law and regulation.
Join us in Washington, D.C., for ALI CLE’s upcoming program, Environmental Law 2025. Attend in-person or live via webcast on February 20-21, 2025. To learn more about this program and to register for the in-person course or live webcast, click here.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
For over 40 years, ALI CLE has been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year, Eminent Domain and Land Valuation Litigation 2025 is taking place in San Diego, California, on January 30-February 1, 2025, in person or via live webcast.
Eminent Domain and Land Valuation Litigation 2025 is “the place to be” for all eminent domain and land use practitioners. Whether your interests include relocation, regulatory takings, inverse condemnation, or valuation issues, topics abound for everyone through a customizable curriculum.
This annual conference will feature 30+ panels with a broad base of 60 speakers from across the country. Get perspectives and insights from the private and public bar, non-profit law firms, appraisers, law professors, and more.
Get a glimpse into some of the topics on this year’s schedule:
Property Rights at the Supreme Court: Devillier and Sheetz and What’s Next
The Basics of a Condemnation Case
Eminent Domain National Law Update
Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Expert Witnesses
Slow Take: Possession, Rent, Relocation, and Offset
Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
B-25s and Psycho Chickens: The Story of United States v. Causby and How Physical Invasions Overtook the Right of Use
And much more!
With concurrent sessions, you can tailor your experience to focus on the topics most relevant to your practice; foster connections that are invaluable to your career; and explore the latest legal developments, trends, and strategies with experts and peers.
Join us in sunny southern California to get reinvigorated, reconnected, and ready to provide expert counsel to your clients. Register today and experience the professional growth, connection, and community that make this conference a must-attend event every year.
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. To learn more about this program and to register for the in-person course or live webcast, click here.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
When real property subject to condemnation is within an area of urban renewal2 or is underutilized, understanding the potential for a highest and best use that differs from a property’s current use, as of the date of condemnation, is critical. This article will explore how to identify an underutilized property, provide practical and legal considerations for counsel and appraisers as they approach the highest and best use for a property in urban renewal areas and prepare for trial, and discuss how and when urban renewal may (and may not) impact the maximum potential use of the subject property.
Urban renewal, whether it occurs organically or through government-driven development and condemnation, evokes a discussion of gentrification of neighborhoods that remains a controversial subject, with the benefits of increased economic activity offset by a decrease in affordable housing and the displacement of residents or businesses who can no longer afford rising costs. This article seeks only to provide guidance so that appraisers, condemnors, landowners, and counsel can identify transitional areas in process and effectively evaluate just compensation in an eminent domain case.
IDENTIFICATION OF AN AREA IN TRANSITION
There are a number of signposts that lead to the identification of a neighborhood that may be in transition from a blighted area to one with burgeoning economic development and improved living conditions. These signs include:
Rehabilitation projects in the vicinity;
Growth of restaurant, bars, and retail stores that pop up in historically industrial areas;
Increasing sales activity and property values;
Government investment in infrastructure and updated facilities;
Nearby brownfields redevelopment activity;
Increasing residential population, particularly higher-income individuals or families, attracted by lower property values and rehabilitation opportunities;
Official local and federal government policy findings supporting or encouraging urban renewal (e.g., tax incentives or zoning overlay designations).
Not all of these signs are visible in the initial stages of transition. However, in a geographic area with significant population growth, these changes can occur rapidly. Speculative investment boosts the momentum of such changes, which can often include covered land plays where interim uses may defray the costs of holding the property until redevelopment is imminent and where an eventual sale of the property for such redevelopment would reflect a premium.
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
APPRAISAL CONSIDERATIONS
Often, a landowner will identify new opportunities for the use of his property. In many circumstances, the landowner has invested in real property in an area of renewal due to the opportunity of growth and increased economic conditions and income. Longstanding property owners are often keenly aware of changing conditions and property value increases and have already considered or planned a conversion of property to a more profitable use. Less frequently, condemnors and their appraisers share this vision, particularly in the nascent phase of transition.
In cases where an appraiser evaluates the opportunity for a change in highest and best use, she must be cognizant of several factors in order to make a proper valuation analysis. These factors include, but are not limited to:
Physical characteristics;
Environmental condition;
Restrictive covenants or other legal restrictions upon use;
Surrounding uses;
Demographics;
Zoning and reasonable probability of rezoning;
Feasibility/market demand;
Consistent use theory; and
Interim uses.
Naturally, these factors are typically examined in the context of the well-known and studied highest and best use criteria: (i) physical possibility; (ii) legal permissibility; (iii) financial feasibility; and (iv) degree of profitability.3
When determining a reasonable probability of rezoning, appraisers may need to address specific criteria, whether by statute or in relevant and binding jurisprudence. In Illinois, for example, the LaSalle/Sinclair Factors4 which detail the following hurdles that must be met in order to satisfy the requirements:
The compatibility with the existing use and zoning of nearby property;
The extent to which property values of the subject property are diminished by the existing zoning restrictions;
The extent to which the proposed amendment promotes the public health, safety, and welfare of the municipality;
The relative gain to the public, as compared to the hardship imposed upon the applicant;
The sustainability of the subject property for the purpose for which it is presently zoned;
The length of time that the subject property in question has been vacant, as presently zoned, considered in the context of development in the area where the property is located;
The consistency of the proposed amendment with the comprehensive plan, and any adopted land use policies; and
That the proposed amendment will benefit the needs of the community.
Other states have worded the criteria somewhat differently. For example, in Colorado, those factors include the following: (i) rezoning of nearby property; (ii) growth patterns; (iii) change of use patterns and character of the neighborhood; (iv) demand within the area for certain types of land uses; (v) sales of related or similar properties at prices reflecting anticipated rezoning; (vi) physical characteristics of the subject property and of nearby properties; and (vii) the age of the zoning ordinance.5
At minimum, any appraiser should include examples of similarly rezoned properties and an analysis of the factors that would provide support that a market participant would expect future benefits. This might be inferred via land sales or sales of buildings to be adapted for reuse under the proposed (and reasonable) rezoning. In some cases where easily identified transactions are scarce or non-existent, more detailed supply/demand analyses might be necessary. Often the appraiser’s investigation must involve consultation with not only the landowner and market participants, but also environmental consultants, local zoning officials, and other professionals.
Environmental issues merit special consideration in areas transitioning from industrial to commercial or residential. In many circumstances, particularly in properties zoned and used for heavy industrial purposes, contamination is present or has been remediated. If the former, the costs of remediation must be considered in any valuation analysis involving a change of use. If the latter, there may exist restrictions on certain types of uses, or contracts with state or federal environmental agencies which restrict certain uses.
The concept of consistent use theory is sometimes overlooked. In an area of urban renewal, some appraisers will identify a highest and best use of investment (i.e., holding the property awaiting a higher value),6 but omit the benefits or income of an existing use in a valuation analysis. Consistent use is “the concept that land cannot be valued on the basis of one use while the improvements are valued on the basis of another.”7 However, using the example of a hypothetical property which serves as both a potato farm and waterfowl hunting grounds, while “it is a violation of the consistent use theory to value a parcel for two uses that are mutually exclusive, it is permissible to value a parcel for two uses that are not incompatible and can take place simultaneously.”8 Thus, because a property can always be used for something in addition to holding as an investment, appraisers should examine other compatible uses, even if they believe a neighborhood transition makes it prudent for a landowner to hold until values ripen. Thus, the concept of interim use, which embraces the concept of dual highest and best uses, may be suitable in most neighborhood transition cases and should be explored.
Furthermore, many market participants of properties—in the areas where the trend of development begins to be a more fundamental question in the highest and best use analysis of a particular site – will refer to income-producing sites as covered land plays. This reflects a perspective that existing and continuing income is strong enough to warrant a short-to-long-term hold, but where the majority of an investor’s return will be recovered upon sale for redevelopment. In these scenarios, capitalization rates for properties might be lower than average rates, as the overall rate must consider not only the year-over-year return, but also the return at the end of the holding period, which in cases like these would reflect a premium.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
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