United States: When A Park In The Sky Leads To A Lawsuit - Three Strategies For Success In High-Stakes Litigation

In 2002, New York City announced its support for preserving the High Line—turning an unused elevated railroad into a thriving park in the heart of Manhattan's West Side. Fifteen years later, it is one of the City's top tourist attractions and is visited by millions of people.

But even the most popular parks can foster litigation, and as an attorney at the United States Department of Justice, I represented the United States in a proposed class action brought by adjacent property owners.

The property owners claimed the United States' conversion of the property under the Rails to Trails Act violated the Fifth Amendment. The Rails to Trails Act includes a mechanism allowing railroad corridors to be preserved under federal law as trails until they are needed for railroad corridors again. New York City used this mechanism as part of its efforts to change an old rail line into one of the City's premier open spaces.

The United States faced tens of millions of dollars in liability in this inverse condemnation action, but through an aggressive defense, we defeated class certification and obtained the dismissal of all claims, and the United States did not have to pay any compensation to the owners of the adjacent property.

In the course of the High Line case, I learned three important lessons for successful high-stakes litigation:

1. Learn Your Facts Early

Whether you are a plaintiff or a defendant, it's important to get a handle on the facts of the case as early as possible. This includes meeting and speaking to witnesses, locating key documents, and learning as much as you can about the issues. A client can greatly help its case (and conserve its resources) by identifying those witnesses and documents and making them available to its attorneys early in the litigation. The client and the attorney should then determine who will be helpful (and who will not) as soon as possible.

Immediately after receiving the complaint in the High Line case, my co-counsel and I began reviewing all the publicly available documents related to the underlying transaction. These documents provided us with crucial information and allowed us to begin forming our defenses early in the case.

It turned out that those public documents contained quite a revelation: Many of the plaintiffs had actually agreed with New York City that they would not sue the United States. As part of the City's efforts to get adjacent property owners and other stakeholders to support the new park, the City agreed to increase the zoning of the neighborhood to allow for greater development (and more value for property owners). The City also gave certain property owners the ability to sell their development rights across the zoning district and created a market for those development rights. In exchange for these benefits, the City required those property owners to release their legal claims, not just against the City, but against the United States, as well.

We confirmed these facts with the stakeholders and again with the plaintiffs in depositions. In addition, both the City and the Friends of the High Line (the group that advocated saving the High Line), provided declarations in support of our case. We then used these documents and the facts surrounding them to convince the court at summary judgment that the United States could enforce these agreements as a third-party beneficiary. The court dismissed many of the plaintiffs on these grounds, and the Court of Appeals for the Federal Circuit affirmed the dismissals.

In sum, our early legwork allowed us to go on the offense for our client, even though we represented the defendant. This taught me that, regardless of which side of the "v" our client is on, diligent investigation and close work between attorney and client from the outset helps gain the upper hand.

2. Timing Is Important

As in life, timing is important in litigation. Along with learning the facts early, clients and their attorneys should give serious consideration to how they want to present their arguments to the court. This includes thinking about potentially dividing the case into parts and developing a schedule for discovery and motions. Clients and attorneys should devote time to considering how to put their best foot forward with the court, and how to conserve resources along the way.

In the High Line case, we decided to address class certification first—because winning the motion would greatly limit the number of plaintiffs and, as a result, the cost of discovery. After we won on class certification, we chose to engage in a short period of discovery on the agreements that many of the remaining plaintiffs had signed with the City and then file a motion for summary judgment. Both decisions on timing allowed us to put strong arguments before the court early in the litigation. And both motions resulted in reducing the number of plaintiffs, leading to lower discovery costs and lower potential financial liability for our client.

3. Go Beyond the Law and Explain Why Your Position Makes Sense

Making the legal argument is not enough. You should always present the logical argument that explains why a ruling in your favor makes sense. Although lawyers are great at assembling the relevant cases and precedent, clients will be invaluable in providing lawyers with what they truly need to win: the reasons why their legal position makes sense from a business and common-sense perspective.

In our case, the final argument turned on the scope of the easement granted when the rail corridor was in use: Was it broad enough to allow for use as a trail? The easement language in our case was exceptionally broad. While New York law was helpful, we needed more. We had to explain why one party would have willingly granted another party such a broad easement over its property. That was a problem until we learned that the easement had been granted from one company to an affiliated entity.

Suddenly, it made practical sense why a company would give another company extensive rights to use its property: It was a related-entity and a known party. And with that common-sense explanation, it became that much easier to persuade the court to enforce the original language of the easement under the law.

In this way, clients are critical partners in assisting lawyers as they explain why certain contract terms or business practices make sense, so the client's legal argument makes sense both legally and logically.


High-stakes lawsuits involving the government are a unique breed of litigation, and the High Line case was certainly no walk in the park. The lessons I learned in that case, however, can be applied to any litigation, big or small.

These lessons were useful to me, and I hope they were for you, too.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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