August 16, 2019

Trying A Construction Delay And Disruption Claim to a Jury

Michael A. Hornreich

First meetings with clients on new construction cases always start off with great enthusiasm.  The client is anxious to relate all of the essential facts about the delay and disruption and then some.  The construction lawyers are listening intently while searching their experience archive for analogous construction disputes to impress the client.  Although the lawyers can hardly wait to get their hands on the documents to find out how much proof there may be for the new client’s position, discussion proceeds by trying to pin down some basic elements that will affect the case that is about to unfold.

The focus always turns at some early point to whether there is a basis for the prevailing party to recover attorneys’ fees and what is the dispute resolution forum and location.  As to the latter, a quick scan of the contract to search the boilerplate language for an arbitration provision or a jury waiver provision should provide clarity.  In some cases we find neither, at which point we tilt our heads and tell the client that we will have to make a decision whether to demand a jury and whether our adversary is likely to do so.  The client asks, “I’m not really sure I like the prospect of a jury deciding my fate, but what do you think?” 

Resisting the urge to digress with a few good war stories, and wanting to appear methodical, we start by giving some context.  First, it is probably helpful to make some comparisons to other dispute resolution procedures more commonly used to resolve delay and disaster disruption damage cases: arbitration and bench trials.

Yes, Lay Jurors Really Understand a Construction Dispute

Trying to limit resort to cliché, let’s address the biggest one right out of the box: it is often generalized that juries of lay people cannot possibly grasp the complexity of a construction dispute that involves contract issues, technical engineering issues, standard practices in the industry, scheduling analyses, and damage calculations.  But they can and do.  We tell the client there is in fact a way to deal with all of these issues, and it can be stated in one word: simplification.  We have seen lawyers who do not get that point, as well as others that understand the need for simplification, but just cannot bring themselves to streamline and simplify.

In contrast we hope that arbitrators and to some extent judges are more knowledgeable of standard practices in the construction industry.  The jury trial solution is to bring on the experts to imbue jurors with the experts’ skill, knowledge and experience.  But, time will tell whether your jury is going to include someone with a significant degree of relevant life experience, either in the construction industry or generally, that enables them to grasp these issues.  Hopefully, that’s the jury foreperson.  And there usually is at least one juror who “gets it.” 

Indeed, counting on the selected jury panel having someone with significant wisdom and life experience with construction is not farfetched, and is really a fundamental foundation of the respect we have for the jury system. 

That said, recurring consideration should be given to whether to employ a jury consultant for a construction case.  Familiarity with the venue, the processing of juror personal information provided for jury selection, and just having someone with dozens of jury selections under their belt, can be of real value.  Construction lawyers will go with their own instincts and experience as to whom can best serve as the trier of fact for a construction dispute, but more insight and information from the jury consultant may make the lawyer and the client just a bit more satisfied with the process.  And, the consultant can add perspective.  As complex as we think construction disputes to be, there can be some hot button issues that weigh heavily on the appraisal of the outcome and just how far you can go in simplification. 

Evidence: Getting It In and Keeping It out Is a Much Bigger Deal

The primary technical legal issues that must be considered in jury trials are the barriers to admission of evidence.  The tactical steps available are very dependent on the timing of judicial decision-making on the issues.  Motions in limine in construction cases are often viewed by judges as lightly disguised motions for summary judgment.  Consideration should be given to whether it is just a means to educate the judge or a bona fide attempt to bar untrustworthy evidence.  Some examples are a party asking a judge to prohibit any evidence of a cardinal change or use of res ipsa loquitor argument on causation because the theories have not been pled, or one or more elements cannot be met, and therefore the jury should not be tainted.  If you think your adversary will scorch the earth with motions, consider whether you are better off forcing motions in limine to be asserted and resolved before the jury is selected, so valuable juror time away from their lives is not consumed with them in the jury room while the judge grapples with the issue.

The rules of evidence take on great significance in jury trials.  Sharpen your knowledge of the elements for admissibility and plan your attacks on admission.  Arbitrators must err on the side of admission.  In bench trials, judges take it all “for what it is worth.”  In jury trials, however, it is not just the hearsay rules, but also the adjunct consideration of the harmless error rule in your jurisdiction that weighs heavily.  Alerting a judge to potential violation of the rule can sometimes be your best “last resort.”  Also, if you think the judge may be crossing the line in your favor, suggest a compromise to avoid inviting error.

Email strings and attachments should be carefully evaluated for embedded hearsay.  The logical view that an entire string is needed for proper context, may not pass the judge’s standard for gatekeeping.  And an objection that an email is facially incomplete because the attachment is missing can slow down or derail a smooth examination of a witness.

Demonstrative Evidence: Only Helpful If You Make Certain You Can Use It

Demonstrative evidence is essential for construction trials.  Lose sleep over how much more difficult it is to use demonstratives and summaries in jury trials.  It seems counterintuitive – judges should allow liberal use of summaries and visual evidence with juries.  But the gatekeeper function requires the demonstrative to meet strict standards.  Argument or unadmitted facts can wreck your deck of PowerPoint slides.  And plan for early disclosure to the opponent – often before trial, and certainly long before opening statements.

The Importance of Jury Instruction

Jury instructions in construction cases become a major battleground.  With many sources of “model” instructions, it would seem to be an easy process to agree upon instructions for the issues pled.  It is not.  Remember that model instructions, even those promulgated as standard instructions, are subject to challenge.  State supreme courts may approve the issuance of standard instructions, but read the fine print.  The law of the state controls, and term “standard” does not mean the instruction is adopted as the law of the state.  Bar jury instruction committees can recommend instructions for a number of reasons, but they are not courts.  Model instructions based on the case law from other states, are by definition not the law of the jurisdiction in which the case is to be tried.  That does not mean a judge cannot be persuaded to give an instruction that is both appropriate to matters pled and unchallenged.

Expert Witnesses:  You Need Good and Admissible Methodology and a Good Testifier

Dealing with construction claims experts for jury trials presents unique issues.  Schedule analysis is a form of proof of liability and causation, and is usually a required element to support the damages that may flow from proven critical delay and disruption.  Therefore, despite being a unique mixture of analyses that does not fit neatly into the concept of new or novel scientific evidence which is the stated focus of the Daubert standard, jury trials require judges to carry out the gatekeeper function for construction expert testimony.

Numerous potential issues may arise, but the most basic point that should not be overlooked, either affirmatively or defensively, is the adequacy of the methodology employed.  Simply stated, expert testimony that merely parrots the theme of a party is more likely to be challenged as ipse dixit something with no support other than that it is said – in a jury trial setting than in other dispute resolution forums.

Most delay and disruption cases involve some degree of creative allegations of unexpected complexity, difficulty, and herculean efforts that overcame many obstacles, all at great cost of time, resources, and money.  Artfully worded allegations do not translate into a free pass for admission of expert analysis and testimony.  Therefore, the potential for Daubert challenges to expert analysis of delays and disruptions in a case to be tried to a jury should be evaluated early. 

Advantages of Direct Deposition Testimony for Trial

Construction cases involve teams of people and that means many witnesses.  Depositions can be used for any purpose at trial, and for jury trials that takes on added importance.  Concise and clear deposition testimony can make very effective points and may appear to jurors to improve the pace of the action.  It seems we hardly ever present truly brief testimony from live witnesses.  And often there is little or no cross examination in depositions, consequently, at trial the cross is limited to counter-designations of transcript.  Therefore, the potential impact of concise deposition testimony from, for instance, a construction superintendent in a jury trial should not be forgotten.  

Along those lines, videotaping deponents has the obvious advantage of the jury seeing the actual witness – and that is particularly true in an industry where many witnesses often relocate for their next job.  However, the added cost and potential for the same good visual presentation being used against you must also be considered, so add it to the checklist of topics to discuss early in the case, before it is too late.

Keep a Brisk Pace and Stay in the Jury’s Good Graces

Construction cases tend to be long, and efficient use of time is at a premium.  Inconsistent rulings by judges in jury trials are not uncommon as the judge tries to move the case along to keep it within the allotted time.  A restrictive or liberal approach to admissibility at the outset of a trial may shift dramatically as the clock ticks.  This practical consideration makes it imperative to pace your use of time to keep your side in good graces with the jury.  In a construction case, that means keeping an eye on cutting down on examination or eliminating witnesses on peripheral points.  It may seem like you have no choice but to pound through the issues and take whatever time it takes.  But keep in mind that running out of time in a jury trial can have the draconian consequence of a mistrial being declared.  And the do-over can be a year or more later.

Verdict Forms:  the Final Battleground

Verdict forms are the final battleground.  How can a jury be asked to render a verdict in a delay and disruption case through answers to limited simple questions as to which party breached the contract?  The conceptual solution of a detailed special interrogatory form or verdict form is commonly rejected by judges.  This dilemma comes with the territory, and planning for it is important, from voir dire through the trial.

Closing Thoughts

A fairly complex construction case tried to a jury will seem like a forced march.  Plan to combat exhaustion of counsel and staff.   Hopefully the judge will see the benefit to a mid-trial day off from presentation of evidence to the jury.  More often, the judge views the jury’s time as more important and, after all, it is a contractual dispute, and the parties have every right and chance to settle it before entrusting their fates to the jury.  Perhaps that is one of the reasons judges push construction jury trial through at an accelerated rate, but hopefully not disrupted pace.

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Michael A. Hornreich

Weinberg Wheeler Hudgins Gunn & Dial, Orlando, FL, Division 5 (General Contractors)