The Adequacy of Jury Instructions in Construction Disputes

Many practitioners were taught to pull the jury instructions at the outset of each new case. Few actually do. One reason: For construction disputes, the pickings are often slim. Only a handful of jurisdictions have instructions paralleling principles of construction law that practitioners (and treatises like Bruner & O’Connor) accept as well-established. In most jurisdictions, pattern jury instructions do not address the complexities of construction law—issues like delay claims, contract modifications, or changed work disputes. Instead, courts often use generalized instructions like “breach of contract” and “waiver” that fail to capture the nuances construction cases demand. Worse, judges can be hesitant to accept tailored “special instructions,” even when they are supported by controlling precedent.

The upshot? If you are in one of the few jurisdictions with pattern jury instructions for construction issues, before jumping to demand a jury trial, carefully review those pattern instructions. Ask yourself: Will these instructions help a jury understand the facts and return a favorable verdict? If not, draft tailored instructions, back them with solid authority, and gauge whether judges in your jurisdiction are likely to approve them. This early analysis can clarify whether a jury trial is the right call. Whether you decide to demand a jury or not, this early exercise will provide a roadmap for tailoring your presentation at trial—an invaluable tool for shaping your case strategy and evidence development.

This article (1) explores the mismatch between construction disputes and generic pattern jury instructions; (2) discusses legal standards governing jury instructions, including courts’ willingness—or reluctance—to accept custom instructions; (3) reviews the construction-focused jury instructions currently available, including those from select states and the ABA Model Jury Instructions; and (4) analyzes critical gaps in these instructions, exploring key issues such as owner interference, pass-through claims, delays, and extra work disputes and offering strategies for crafting tailored jury instructions to bridge these deficiencies.

The Universe of Construction-Focused Jury Instructions

Pattern Jury Instructions Tailored to Construction Disputes Are Rare

A handful of states—–California and Utah among them, as discussed below—offer comprehensive sets of proposed instructions addressing a broad range of issues that arise in complex construction disputes. Other states—like New Jersey and Texas—have a relatively small number of proposed instructions relevant to construction suits, such as instructions regarding “substantial completion” and “pay if paid” clauses. Practitioners in states without specialized instructions can look to these jurisdictions for guidance. But, as this article explores, these specialized instructions can be incomplete or fail to fully align with prevailing law.

Against this backdrop, the American Bar Association (ABA) has developed Model Jury Instructions for Construction Litigation. These are not perfect (as discussed below), but they offer a solid starting point for drafting special instructions tailored to your case. We have not found any published decisions confirming the use of the ABA’s model instructions to instruct a jury, but we have identified cases where judges have relied on these instructions to aid in interpreting applicable construction law. However, the Third Circuit has previously endorsed the ABA’s model construction instructions as a useful reference for drafting jury instructions, highlighting their role in addressing gaps left by generic or incomplete pattern instructions.

Generalized Pattern Jury Instructions Are Often a Bad Fit for Construction Cases

Construction disputes tend to revolve around three critical elements: scope, time, and money. Scope disputes may involve defective plans, unanticipated site conditions, or disagreements over contract deliverables, but standard instructions provide no guidance on how to assess these issues. Time disputes, including delay claims, acceleration, or concurrent delays, require detailed explanations of critical path scheduling and excusable delays—guidance that is entirely absent from most pattern jury instructions. Similarly, money disputes involving liquidated damages, cost overruns, and lost productivity often require jurors to evaluate project budgets, change orders, and disputed payment applications, yet pattern instructions fall far short of addressing these complexities.

The pattern instructions in most jurisdictions lack tailored guidance, forcing attorneys to rely on generic instructions for issues like breach of contract, contract modification, and waiver. These one-size-fits-all instructions often fail to capture the nuanced legal and technical challenges unique to construction cases. For example, Pennsylvania’s standard “breach of contract” instruction reads:

Plaintiff claims that Defendant did not do what it agreed to do under the contract. We call this a “breach of contract.”

Plaintiff claims that Defendant’s breach of this contract caused it harm for which Defendant should pay money damages.

Plaintiff must prove the following:
1. The existence of a contract, including its essential terms; and
2. Defendant breached a duty created by the contract.

While concise, this instruction provides no guidance on how jurors should handle the complex web of promises that make up a construction contract, not to mention disputes related to scope changes, delays, or complex damage calculations—key issues in construction cases. The oversimplification of legal standards in some pattern instructions compounds these problems. For instance, standard causation instructions rarely address concurrent delays or the interplay between defective design and poor workmanship. Similarly, damage instructions often fail to consider issues like liability allocation among multiple parties whose connection is a web of related contracts (as distinguished from allocation amongst jointly liable tortfeasors) or claims for lost productivity. These omissions force jurors to rely on intuition rather than a proper understanding of the law, undermining the reliability of their verdicts.

The bottom line: Pattern jury instructions are often too generic, oversimplified, or misaligned with construction law, leaving jurors ill-equipped to render fair and accurate verdicts in construction disputes.

Contract-Specific Provisions and the Limits of Pattern Jury Instructions

Construction disputes often turn on the specific terms of the contract. These provisions require jurors to interpret detailed contract language and assess equitable factors like waiver or the parties’ course of conduct. Pattern instructions—even comprehensive sets like those in California and Utah—rarely address these complexities. As a consequence, attorneys should plan to craft custom instructions tailored to the specific provisions in the contract. Clear, case-specific guidance ensures jurors understand both the contract terms and the legal principles that may impact their application.

Legal Standards for Special Jury Instructions

Clear and accurate jury instructions are a cornerstone of civil litigation. Proper instructions ensure that jurors understand the law and apply it correctly to the evidence. For attorneys litigating construction cases, evaluating the adequacy of pattern instructions and crafting custom instructions to address gaps or ambiguities are essential. But will your judge approve your special instructions?

Parties Are Entitled to Jury Instructions That Accurately State the Law

Most jurisdictions say that litigants are entitled to jury instructions that accurately and comprehensively state the law as it pertains to the evidence presented. Courts typically maintain that they will permit custom or modified instructions when two conditions are met. First, the instructions must accurately reflect established legal precedent without misstating or overgeneralizing the applicable principles. Second, they must avoid misleading jurors, instead complementing existing pattern instructions and maintaining clarity.

Successfully advocating for custom instructions requires a strong command of caselaw and procedural rules. Attorneys should anticipate judicial skepticism, as courts often prefer the consistency of pattern instructions. To overcome this, practitioners must demonstrate that each of their proposed instructions resolves a critical gap or clarifies an ambiguity in the existing framework and is necessary to ensure jurors receive legally accurate and case-specific guidance.

Will a Judge Consider and/or Approve Your Proposed Construction Dispute–Focused Jury Instructions?

Relying on caselaw that recognizes that litigants are entitled to jury instructions that accurately reflect the law as applied to the facts of their case, practitioners may feel confident proposing “special” jury instructions tailored to well-established principles of construction law. However, in practice, judges may hesitate to approve such instructions, even when pattern jury instructions are insufficient. This judicial reluctance often stems from a competing legal principle: deference to the uniformity and reliability of standard pattern jury instructions. While in California pattern jury instructions are not entitled to a presumption of correctness, many courts prioritize the use of pattern instructions, even when they fall short of accurately guiding jurors in specific cases.

Practitioners in North Carolina should be aware that North Carolina courts have held that “‘the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions’” and have shown some resistance to modifications or deviations from them. Similarly, Missouri courts have emphasized the mandatory nature of their pattern instructions. As articulated in Missouri caselaw:

“The law is well-settled that where [a Missouri Approved Instruction] applies to the case, the use of such instruction is mandatory.” . . . [and that trial courts are] bound by them as surely as [they are] bound by Supreme Court cases and rules.

Similarly, Missouri courts have further elaborated, stating:

[T]here is a plethora of law which states that instructions should not be unnecessarily modified and trial courts should utilize [Missouri Approved Instructions] whenever possible.

This judicial preference for standardized instructions can present a significant hurdle for practitioners advocating for custom guidance.

California’s Approach

California’s Civil Jury Instructions (CACI instructions) are among the most comprehensive sets of construction-specific jury instructions in the United States, offering 33 instructions tailored specifically to construction disputes. The instructions for issues that come up in non-construction disputes (like breach of contract, notice, waiver, mitigation of damages) are adapted so they fit construction disputes. In addition, the set contains instructions that are largely unique to construction disputes, such as extra work and change orders and the implied warranties of workmanship and habitability.

Yet, despite their breadth, the CACI instructions have gaps. Many issues that arise in construction cases, such as pass-through claims, the enforceability of notice requirements, and damages for concurrent delays, are not fully covered. To be sure, a practitioner may sense that the presiding judge has a default preference to use approved pattern instructions. But California law provides that custom or modified instructions should be approved if they meet three criteria: correctness, relevance, and clarity. That is, custom instructions must accurately reflect the law, directly relate to the evidence and legal theories presented, and avoid overemphasizing specific facts or repeating concepts unnecessarily. Courts reject instructions that fail to meet these standards.

Ultimately, jury instructions are intended to serve as a roadmap to guide jurors through the legal principles they must apply to the evidence. Practitioners must convince the bench that the approval of well-crafted custom instructions (to supplement or replace generic instructions) will reduce juror confusion and allow them to navigate the intricate intersections of law and fact unique to construction litigation.

Strategic Considerations for Jury vs. Bench Trials

When deciding whether to file a jury demand at the outset of a construction case, attorneys must weigh the complexity of the claims, the adequacy of available jury instructions, and the challenges of presenting technical issues to a lay audience. While juries may excel in straightforward disputes, such as breach of contract or nonpayment claims, complex construction litigation can overwhelm jurors, particularly when instructions fail to provide sufficient guidance. In such cases, the risks of misapplied law and inconsistent verdicts are real.

In jurisdictions with limited or rigid pattern jury instructions, attorneys should consider whether a bench trial might offer a more predictable and effective forum. Judges, especially those experienced in construction law, are generally better equipped to analyze complex disputes. As compared to jurors, judges are less likely to be swayed by emotional appeals or misunderstand technical evidence. For cases involving intricate technical details or voluminous evidence, a bench trial can provide a strategic advantage.

To determine the appropriate forum, attorneys should take the following steps. First, assess whether the available jury instructions adequately address key issues in the case. Gaps in coverage can significantly impact how jurors evaluate the evidence and apply the law. Second, consider whether courts in your jurisdiction are open to custom instructions or external resources, like the ABA Model Jury Instructions. For instance, in United States v. Berkley Regional Insurance Co., the court relied on ABA Model Jury Instruction § 5.03 to affirm that a contractor performing extra work at an owner’s request is entitled to reasonable compensation even without a prior price agreement. Similarly, in College Villas, L.P. v. Burke Construction Group, Inc., the ABA instructions were used to clarify causation and damages standards in a construction defect case. These examples show that custom or model instructions can help address gaps in pattern instructions.

Finally, evaluate whether the complexity of the case is manageable for a jury. For highly technical disputes, a bench trial may be preferable due to a judge’s expertise and ability to parse technical details. Conversely, simpler claims supported by compelling narratives may benefit from a jury’s practical, common-sense perspective. By strategically considering these factors, attorneys can select the forum best suited to their case. Whether presenting before a jury or a judge, careful preparation and a thoughtful approach to jury instructions are essential to achieving a favorable outcome.

Key Gaps in Pattern Jury Instructions and How to Address Them

Practitioners looking to prepare a set of proposed jury instructions tailored to a construction dispute can look to pattern instructions available in California and Utah, as well as the ABA model instructions. But they should evaluate each of these possible sources of guidance with a critical eye. Even seemingly comprehensive sets of instructions have gaps and fail to address issues that commonly arise. For example, there is minimal guidance on owner interference, a doctrine holding owners liable for obstructing or delaying a contractor’s performance. Other critical topics—such as pass-through claims, concurrent delays, critical path methods, and delay-related clauses—are either underexplored or entirely absent, despite their importance in construction litigation. And, in some instances, they either don’t fully align with governing law or fail to provide instructions that jurors will be able to understand.

To ensure jurors receive accurate and comprehensive legal guidance, attorneys must take a multifaceted approach—evaluating state-provided instructions, leveraging external resources, and crafting tailored jury instructions where necessary. Below, we highlight key areas where custom instructions may be essential and explore strategies for adapting them to address specific legal challenges.

Implied Warranty of Adequacy of Design

The US Supreme Court’s landmark decision in United States v. Spearin confirmed that contractors are not responsible for defects in plans provided by owners, so long as the contractor follows those plans. Courts in many states, including California, have consistently upheld this principle, ruling that defective plans breach the owner’s implied warranty, often leading to additional costs or delays for contractors. A corollary to this rule is that satisfactory performance will result if the contractor adheres to the specifications. As the Supreme Court emphasized, a contractor’s duty to check plans does not extend to ensuring their adequacy for achieving the project’s purpose. Despite its foundational importance in construction law, this implied warranty is rarely addressed in pattern jury instructions, leaving jurors without clear guidance on the owner’s responsibility for design adequacy. This omission is especially problematic in cases involving design-build projects, incomplete plans, or disputes over defective designs.

California’s CACI 4500 offers a basic approach, outlining the elements necessary to establish a claim for defective plans or specifications. It requires the plaintiff to prove (1) the owner provided plans and specifications for the project, (2) the contractor was required to follow those plans and specifications, (3) the contractor reasonably relied on the plans and specifications, (4) the plans or specifications were incorrect, and (5) the contractor was harmed as a result of the incorrect plans or specifications. But CACI 4500 does not provide the juror necessary context for these requirements—such as a clear statement of the “implied warranty of correctness”—even though that information would make the instructions easier to understand and even though the “sources and authority” for CACI 4500 recite such principles.

Utah’s proposed instruction based upon Spearin is even leaner:

CV2209 Defective plans and specifications. 
If [name of contractor] proves that [he] acted reasonably in following [describe plans and specifications] provided by [name of owner], then [name of contractor] can recover from [name of owner] the costs caused by reasonable reliance on the plans and specifications.

By comparison, ABA Model Jury Instructions 4.06 and 8.04 offer proposed instructions regarding the owner’s implied warranty that provide some of the context missing from the California instruction. These ABA instructions inform the jury that an owner is responsible for ensuring the accuracy and suitability of plans and specifications and that the warranty is not negated by general contractual clauses requiring contractors to inspect the site or verify plans. Model Instruction 4.06 explains that a contractor is entitled to rely on the owner’s plans and specifications and is not liable for deficiencies caused by defects in those plans, provided the contractor follows them accurately. Model Instruction 8.04 outlines two scenarios of breach: when actual site conditions differ from those represented and when the contractor follows the specifications but the project fails to meet its intended purpose. Both instructions help jurors understand the owner’s obligations and the circumstances under which a contractor may recover additional costs or avoid liability.

Ultimately, while CACI 4500 provides the foundation for a Spearin doctrine claim, ABA Model Instructions 4.06 and 8.04 offer the detail and context necessary for jurors to fully understand the legal standards at play. Using these instructions in tandem ensures jurors can fairly evaluate claims of defective plans and specifications in construction disputes.

Duty to Disclose

An owner’s duty to disclose information to a contractor before bid submission is often a key issue in construction disputes. Utah’s pattern jury instructions articulate this principle to the jury as follows:

CV2206 Owner’s duty to inform
[Name of contractor] claims that [name of owner] had a duty to disclose the following information before the bid was submitted: [describe information.] You must decide whether, [name of contractor] has proved that:
(1) [name of owner] did not disclose the above-described information to [name of contractor];
(2) the undisclosed information was important to [name of contractor]’s ability to perform the contract; and
(3) [name of owner] had knowledge about the undisclosed information that was not available to [name of contractor].
If you find that [name of contractor] has proved all of these facts, then [name of owner] is liable to [name of contractor] for damages.

For practitioners, CV2206 serves as a valuable model when arguing disclosure-related claims. It provides a clear roadmap for proving an owner’s liability and highlights the importance of pre-bid transparency. Yet, outside of Utah, many jurisdictions lack comparable pattern instructions, leaving courts to address these disputes without standardized guidance. Where no such instruction exists, attorneys may need to propose one modeled after CV2206 or rely on caselaw to fill the gap.

Pass-through Claims

When an owner breaches a construction contract with a contractor, damage often ensues for a subcontractor. In such cases, subcontractors typically cannot assert claims directly against the owner due to a lack of privity of contract. However, subcontractors can present their claims to the general contractor, who is permitted, in turn, to pass them along to the owner. Pass-through claims are common in construction disputes and involve complex contractual relationships that jurors must evaluate. Specifically, jurors must determine whether the prime contractor has properly preserved and presented the subcontractor’s rights.

Despite the prevalence of pass-through claims, pattern jury instructions fail to address them at all, let alone the critical issues such as privity of contract, the prime contractor’s obligations, and the owner’s potential liability. Thus, while California law confirms that “[a]s a matter of law, a general contractor can present a subcontractor’s claim on a pass-through basis,” pass-through claims are not addressed in the CACI instructions. Nor are they addressed in either Utah’s construction-focused instructions or the ABA’s model instructions.

That effectively leaves it to the practitioner to prepare and propose a pass-through instruction. An exemplar, based upon California caselaw, might read as follows:

Each construction project involves several levels of workers. First, there is the project owner. The owner enters into a contract with the general contractor, who is in charge of building the project. The general contractor then hires and enters into contracts with subcontractors or suppliers to help build the project.

When actions by an owner harm a subcontractor or supplier on a public works project, the subcontractor or supplier is not allowed to assert a claim directly against the owner for that harm. This is because there is no contract between the owner and the subcontractor or supplier. The subcontractors or suppliers only have contracts with the general contractor.

California law does allow a general contractor to present claims to an owner on behalf of its subcontractors and suppliers for harm caused to them by the owner. These types of claims are commonly known as “pass-through claims.” For these claims, the subcontractor or supplier asserts a claim against the project’s general contractor and the general contractor passes that claim along to the public agency on behalf of the subcontractor or supplier.

Extra Work and Change Orders

Disputes over extra work and change orders are a staple of construction litigation. Contractors often seek additional compensation for work they claim is outside the original contract’s scope, while owners argue the work was either within scope or unauthorized. Some CACI instructions reference change orders, but there is no stand-alone instruction explaining their significance. A specific instruction would clarify the legal role of change orders, ensuring jurors understand that valid change orders require contractors to perform the additional work, while owners must compensate contractors and adjust deadlines as necessary.

ABA Model Jury Instruction 5.02 offers a clear framework for addressing change orders:

A change order is a written document that is signed by the owner and contractor acknowledging a change in the work required of the contractor and an adjustment, if any, to the agreed-upon contract price and/or schedule. You have heard testimony that there were certain change orders issued to the contractor by the owner during the course of the construction project. If you find that the contract contains a provision allowing the owner to issue change orders and requiring the contractor to perform work pursuant to change orders, then the owner is permitted to issue change orders and the contractor is required to perform them.

Change orders on a construction project are very common. The fact that the owner made changes to the work does not by itself constitute a breach of contract. However, a refusal by the contractor to perform the work requested by the owner pursuant to a change order constitutes a breach of contract, unless the contractor can prove that it had legal justification for refusing to perform the work. On the issuance of a change order, the owner has an obligation to pay the contractor for the extra work and to extend the time needed for performance.

The value of having this basic information supplied to a jury in this neutral fashion by the judge is immeasurable.

Contractual Notice Provisions and Substantiation Deadlines

Notice provisions in construction contracts require contractors to notify owners of changes, delays, or claims. Also, construction contracts often have deadlines for contractors to substantiate claims. While widely used, in some jurisdictions these provisions are not enforceable when the owner suffers no prejudice from the lack of notice. We have found no pattern instructions that adequately address the enforceability of these clauses, leaving jurors without guidance on balancing strict contractual language with equitable considerations. For example, an owner’s prior breach of contract, or its actions—such as substantively responding to a claim—may arguably waive the notice requirement, but no pattern instructions address these limitations.

CACI 4521 and 4522 address notice provisions and their enforceability, but only in the most generic sense. CACI 4521 specifically addresses contractual change order requirements and instructs the jury that the contractor must prove that it followed, or that it was excused from having to follow, the changeorder requirements. CACI 4522 does not use the words “change order” but instead speaks in terms of “additional work,” instructing the jury that it can find waiver of notice requirements if the owner freely and knowingly gave up its right to require the contractor to follow the contract’s written notice requirements.

CACI 4522 also instructs the jury that “a waiver may be oral or written or may arise from conduct that shows [the owner] clearly gave up that right,” but the language does not fully capture the range of circumstances that can give rise to an owner’s waiver, such as the owner’s prior breach of contract or lack of actual prejudice. As to the former, the California Supreme court’s decision in Amelco Electric v. City of Thousand Oaks approved of a jury instruction making it plain that a general contractor is entitled to recover if the owner breaches the contract by providing an inadequate design, makes excessive or disorganized changes, or fails to make timely payments.

An exemplar instruction, using Amelco and ABA Model Jury Instruction 14.03 as a template, might read as follows:

The contractor claims damages for extra work performed outside the required scope of work. As a defense, the owner asserts that the contract required the contractor to provide timely, written notice of the extra work, and the contractor failed to do so.

If the contractor failed to give proper and timely notice, you may find that the contractor waived its right to recover for the extra work. However, the contractor may demonstrate circumstances or conduct by the owner that justify the contractor’s failure to provide notice.

To excuse its failure to provide notice, the contractor must prove:

1. The owner knew about the extra work and acted in a way that showed an intent to waive or modify the notice requirement, or
2. The owner did not suffer actual prejudice by lack of timely notice; or
3. The owner acted in bad faith or engaged in willful misconduct; or
4. The contractor’s claims arise out of the owner’s breach(es) of contract, or
5. The owner was grossly negligent in fulfilling its contractual obligations.

 

This proposed instruction provides a framework for evaluating disputes over extra work and notice compliance. It helps jurors understand how notice provisions interact with equitable principles, such as waiver, bad faith, and negligence. Without this guidance, jurors may struggle to evaluate whether notice requirements were appropriately enforced or excused, leaving room for inconsistent or inequitable verdicts.

Owner’s Duty Not to Hinder Work

The owner’s duty not to hinder or delay a contractor’s work is an implied obligation in construction contracts. In fact, a key principle of construction law is that contractors are entitled to control their own “means and methods” without interference from the project owner. Owners must refrain from actions that delay progress, disrupt construction methods, or create conditions that impede performance. Despite its importance, few jurisdictions provide explicit jury instructions on this duty, leaving jurors without guidance when disputes arise over owner interference. This gap can lead jurors to overlook or misapply the principle, especially in cases involving jobsite access restrictions, scheduling and sequencing disputes, or aggressive shop drawing or submittal reviews.

ABA Model Jury Instruction 4.03 provides a useful framework for clarifying this duty. It states that an owner breaches the contract when its actions “unreasonably obstruct, hinder, or delay the contractor’s work.” To prove this claim, a contractor must establish the following:

1. The contractor and owner entered into a contract.
2. The contractor substantially performed its obligations under the contract (or was excused from doing so).
3. All conditions required for the owner’s performance had occurred (or were excused).
4. The owner unreasonably interfered with the contractor’s ability to perform the work.
5. The contractor was harmed by the owner’s conduct.

Providing this instruction to the jury will guide its understanding of the owner’s implied duty not to interfere, particularly in scenarios where project owners cause delays or inefficiencies by withholding approvals, making excessive objections, or interfering with construction schedules.

The CACI instructions lack corresponding jury guidance for this principle, leaving jurors without a clear framework for assessing owner interference. Incorporating a custom jury instruction based on an owner’s duty to cooperate and not to hinder construction work provides jurors with clear legal standards for evaluating claims of owner interference. This clarity is particularly valuable in disputes where delays or inefficiencies are contested, helping jurors fairly and accurately determine whether an owner’s actions constituted a breach of the contract.

Project Delays

Delays are among the most common issues in construction litigation, yet pattern jury instructions often fail to provide jurors with the tools needed to assess them effectively. For instance, jurors are frequently left without guidance on how to evaluate concurrent delays, where responsibility for delays is shared between the contractor and the owner. Similarly, many delay claims hinge on critical path method scheduling, a technical tool used to analyze project timelines, but pattern instructions provide little support to help jurors interpret this complex evidence. Additionally, delay-related provisions, such as liquidated damages, time extensions, and force majeure clauses, are rarely addressed in pattern instructions. This leaves jurors ill-equipped to determine their applicability or significance in resolving disputes.

Utah’s pattern jury instructions attempt to address these issues. CV2225 states:

CV2225 Concurrent delay
If you find that both parties contributed to the delay, then neither party is entitled to recover damages as a result of the delay.

However, this instruction suffers from an unfortunate ambiguity. A jury could mistakenly read it as barring recovery if both parties contributed to the delay in any way, even if one party was responsible for a significantly greater portion of the delay. This interpretation would effectively impose a contributory negligence–style bar (i.e., from tort law) rather than a more nuanced comparative fault approach.

Another Utah instruction, CV2226, attempts to carve out exceptions where a contractor can recover damages despite a contract provision barring delay-related compensation:

CV2226 Damages for delay
[Name of contractor] claims damages for delays. The contract provides that [name of contractor] is entitled to extra time to complete the work but is not entitled to recover damages caused by the delay. However, there are circumstances in which [name of contractor] may recover damages for delay regardless of the contract.
To succeed on this claim, [name of contractor] must prove
[(1) that [name of owner/owner’s agent] caused the delay by direct interference, active interference, or willful interference with [name of contractor]’s work.]
[(2) the delay was not reasonably foreseeable at the time the parties entered into the contract and the delay was excessive and unreasonable.]

While this instruction acknowledges exceptions to “no-damages-for-delay” clauses, it may not align with all jurisdictions or contract terms. It suggests that an owner is only liable for delay damages in cases of interference, but many states recognize additional bases for liability, such as constructive acceleration, differing site conditions, or contract-based relief.

In contrast, ABA Model Instruction 6.09 provides a more balanced approach, allowing the jury to allocate delay responsibility among multiple parties:

6.09 Concurrent Delay
When multiple events, caused by multiple stakeholders, impact the project during the same time, it is called a concurrent delay. In this case, the contractor claims that its own delay should be excused because the owner caused a delay to another work task during the same time, and the owner’s delay was concurrent with the contractor’s delay.
To prove that its delay was concurrent, the contractor must demonstrate the following:
(1) Contract performance was delayed by multiple events.
(2) Multiple events caused critical path delays of the project.
(3) Multiple events were attributable to both the contractor and the owner.
(4) It is impossible to allocate critical path delay between the events.

Unlike Utah’s CV2225, which could be misread to preclude recovery entirely if both parties contributed to the delay, Model Instruction 6.09 recognizes that concurrent delays often involve overlapping and interdependent causes. It allows jurors to evaluate whether delays were truly concurrent, whether they affected the critical path, and whether responsibility can be allocated. This approach better reflects how courts and delay experts analyze concurrent delays in real-world construction disputes.

Liquidated Damages

Liquidated damages clauses often play a pivotal role in construction disputes, particularly in cases involving substantial delays or cost overruns. Yet determining whether such provisions are enforceable often requires resolving factual disputes—an area where pattern jury instructions provide little to no guidance. In most states, a liquidated damages clause is unenforceable as a penalty if either (1) it aims to deter or punish a contractor for breaching the contract or (2) the stipulated amount is unreasonable compared to the foreseeable damages at the time of contracting. CACI 4532 covers liquidated damages for delay but assumes the enforceability of the clause. It offers no guidance when enforceability is contested. This gap leaves attorneys and jurors navigating uncharted territory.

Under California law, Civil Code § 1671 governs the validity of liquidated damages clauses. Such provisions are presumed valid unless the challenging party demonstrates they were “unreasonable under the circumstances existing at the time the contract was made.” The California Supreme Court has clarified that a liquidated damages clause is unenforceable if it fails to reflect a “reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.” Key factors in determining reasonableness include the anticipated difficulty of proving actual damages, the proportionality of the liquidated amount to the expected harm, and the bargaining power of the parties.

The Directions for Use for CACI 4532 acknowledge this limitation, noting that if a liquidated damages clause is deemed unenforceable because it constitutes a penalty, the owner may still recover general and special damages under CACI Nos. 350 and 351. However, because the enforceability of liquidated damages provisions is generally treated as a question of law subject to de novo review, no jury instructions exist to guide jurors on this issue.

But, in many cases, that question of law can only be answered after factual disputes are resolved. That, in turn, could potentially require a jury instruction. No pattern instructions address these questions.

For now, CACI 4532 offers a standard instruction for calculating liquidated damages in cases where the clause is not contested:

Plaintiff claims that Defendant breached the parties’ contract by failing to [substantially] complete the project by the completion date required by the contract. If you find that Plaintiff has proven this claim, the parties’ contract calls for damages in the amount of $____ for each day between the contract completion date and the date on which the project was [substantially] completed. You will be asked to find the date on which the project was [substantially] completed. I will then calculate the amount of damages.

[If you find that Plaintiff granted or should have granted time extensions to Defendant, you will be asked to find the number of days of the time extension and add these days to the completion date set forth in the contract. I will then calculate Plaintiff’s total damages.]

However, in cases where enforceability itself is disputed, attorneys and jurors are left without adequate tools to address these critical issues. This gap in the instructions creates significant challenges in litigating liquidated damages disputes, making custom jury instructions or alternative strategies essential for ensuring a fair and legally sound resolution.

Other Areas Requiring Tailored Instructions

Warranty of Commercial Availability of Materials, Products, and Equipment

Disputes sometimes arise when owners specify single-source materials, products, or equipment that are unavailable or unsuitable. CACI 4502 provides guidance on an owner’s duty to enable a contractor’s timely performance, while ABA Model Jury Instruction 4.09 clarifies that contractors are not liable for delays caused by the unavailability of required materials.

The parties can craft an instruction using elements of both CACI 4502 and Model Instruction 4.09 tailored to their particular case. This way, jurors gain a complete framework for evaluating owner interference—whether through inaction or unreasonable specifications—and determining responsibility for delays or added costs.

Implied Warranty of Adequacy of Contract Time

ABA Model Jury Instruction 4.19 emphasizes that owners must set realistic timelines for project completion. To prove this defense, the contractor must demonstrate:

1. The contract specified a completion timeframe.
2. The owner knew or should have known that completing the work within this timeframe was not reasonably possible.

Including such an instruction ensures jurors can properly assess whether a contractor’s delay was justified under the circumstances.

Design Specifications

ABA Model Jury Instruction 8.03 explains that design specifications dictate the materials and methods contractors must follow, and owners implicitly warrant that these specifications will produce acceptable results if followed correctly. Contractors are entitled to rely on the accuracy of design specifications and are not liable for damages caused solely by defects in those specifications.

An instruction addressing design specifications would clarify for jurors that (1) contractors must follow the specifications as written and (2) owners are liable for errors or defects in the specifications. Given the central role of design specifications in construction projects, this instruction would provide jurors with the necessary tools to evaluate claims of liability or defenses tied to defective plans.

Conclusion: Tailoring the Approach to the Case

Deciding between a jury trial and a bench trial in a construction case hinges on a number of factors. Examples include claim complexity, the adequacy of jury instructions, and the forum’s ability to handle technical issues. Practitioners also need to consider whether a jury or judge would be more sympathetic to their client’s case. Each option has unique pros and cons that demand careful consideration. And, of course, many contracts have jury waivers, but pre-dispute contractual jury waivers are not enforceable under California or Georgia law.

In addition, attorneys should evaluate whether existing jury instructions adequately address their case’s nuances. If they fall short, tailored instructions can provide jurors with the clarity needed to assess the evidence fairly. For highly technical disputes or extensive evidence, a bench trial’s predictability and expertise may offer a better path to success. Ultimately, thorough preparation and strategic planning are key. By understanding the strengths and limitations of jury instructions in a given jurisdiction, attorneys can adapt their approach to maximize their chances of success in a construction dispute.