Construction Litigation

Articles

In-depth analysis and practical advice on topics relevant to your practice. Find all of the Construction Litigation Committee’s articles in this archive.

2019

Considerations for an Effective Mediation
By Ron Williams – April 22, 2019
The mediation framework, the proper use of experts, and the settlement agreement.

Pulling Off an Effective Direct Examination to a Jury
By Ron Williams – April 22, 2019
Direct examination must be organized, concise, and entertaining.

Battle of the Forms: Construction Contract Versus Insurance Policy
By Ellen M. Chapelle – April 22, 2019
Common ways that insurers limit the scope of coverage by referencing only what is required.

Staying in Control of Delay Claims While Mitigating Delays
By John Kimon Yiasemides – April 22, 2019
Important points to remember when implementing mitigation measures and considerations for preserving claims and collecting the data needed to support claims.

2018

How Modern Scheduling Software Has Changed Our Understanding of the Critical Path
By Bill Haydt – April 19, 2018
It’s important to be aware of how CPM scheduling software features like calendars and constraints might lead you astray in identifying a project’s critical path.

Best Practices in Dealing with Spoliation, Preservation, and Privilege
By Jeanne Schubert Barnum – April 19, 2018
The importance of having a preservation plan in place, a litigation hold letter ready to go, and the Rules of Professional Conduct always in mind.

Five Tips for Controlling Time and Cost in Construction Arbitration
By Mia Levi and Michael A. Marra – April 19, 2018
Guidance from two members of the American Arbitration Association’s Construction Division on keeping the process efficient.

Be Aware of Sovereign Immunity
By Lester Gulitz – April 19, 2018
When doing work for Indian tribes or other sovereign nations, wise contractors recognize that they are in a situation where the rules of engagement may not be what they are used to operating under.

2017

Arbitration and "Appellate" Review: Competing Legal Principles
By Eric Sparks– May 17, 2017
An examination of freedom of contract and the rule of law in the jurisprudence of merits-based review of arbitration awards.

Thoughts on Building an Unassailable Arbitration Award
By Hon. Clifford L. Meacham (Ret.) – May 17, 2017
Ideally, the award is the result of a well-orchestrated, consensual interaction between counsel and the arbitrator.

Causation Analysis—How to Avoid a Missing Link When Proving Construction Damages or Delay
By Paul Ficca and Peter Vosbikian – May 17, 2017
A judge or jury will typically be more inclined to find the cause-and-effect link more plausible when a cogent presentation is made using project records, such as daily reports and project photographs.

The Contractor’s Emerging Exposure for Design Responsibility
By Jennifer S. Lowndes – May 17, 2017
The best course of action to prevent a contractor from being saddled with design responsibilities that could erode its Spearin rights is to be vigilant and proactive up front during the contract negotiation.

2016

Construction 101: Opening Statements
By Stephen Skoller – July 15, 2016

Studies have shown that trials are sometimes won and lost just through the opening statement. Here are some tips for presenting them effectively.

Does Your Client’s Contract Help Control Dispute Resolution Costs?
By Robert K. Cox – July 25, 2016

Applying legal due diligence can be a significant cost saver later on when that legal due diligence review has resulted in allocating the risks of the project to better suit your client’s project business model.

Cross-Examination: Kicking over the Other Guy’s Sand Castle
By Michael R. Gordon and Ira M. Schulman – July 25, 2016

With careful planning, preparation, and confidence, cross-examination can rivet the jury on the themes and points you are trying to get across to them.

Jury Selection: Three Strikes, You’re Out!
By Stephen Skoller – July 25, 2016

Studies have shown that trials are sometimes won and lost just through the opening statement. Here are some tips for presenting them effectively.

Construction Trial Tips: Old School Demonstrative Evidence
By James H. Landgraf – July 15, 2016

Sometimes counsel may find simple, rather than high-tech, presentation of evidence makes the most sense.

2015

An Overview of Three Major Delay Damages Issues
By Kevin Long and Eric Van Schyndle – February 9, 2015

The analysis of delay damages issues can be a minefield for the construction lawyer.

Practical Tips on Concurrent Delay
By Wayne DeFlaminis – February 9, 2015

Many disputes are self-inflicted. To avoid disputes, owners could benefit from the suggestions in this article.

Class Actions: Evolution Toward Merits and Class Discovery Proceeding Together
By Lawrence Deutsch, Glen L. Abramson, and Jacob M. Polakoff – February 9, 2015

Since Dukes and Comcast, there is no bright line between these two discovery types, making bifurcation a viable approach to discovery.

2014

Advising Clients of Arbitration Awards and Vacatur of an Award
By Chad Cron and K. Stefan Chin
In contract disputes, counsel must be able to properly advise clients about the limited circumstances for vacating arbitration awards under the FAA.

Construction Adjudication on the Rise Globally for Payment Disputes
By John Madden
This legal process is a fast form of "rough justice."

"Remedies for Nonpayment" Rules Create New Challenges for Arbitrators
By Eric A. Sauter and John J.P. Krol
Do the new commercial and construction industry rules create a thin line for statutory misconduct?


New AAA Rules Provide Straightforward Guidelines for Appeals

By Richard H. Steen
New rules from the AAA provide easier, more standardized guidelines for clients who wish to appeal an arbitration award.


Use of Dispute Review Boards on the Rise for DOT Projects
By Doreen M. Zankowski and Gregory M. Boucher
Contractors and clients must familiarize themselves with the advantages of using Dispute Review Boards (DRB) for many states’ DOT projects, or risk being left in the dust.

2013

Reaching Your Audience
By Ann T. Greeley – January 30, 2013

Have you considered the real value of doing alternative dispute resolution (ADR) research in your case?

Use, Abuse, and Control with RFIs
By By Megan Wells and James G. Zack Jr. – January 30, 2013

This article identifies current problems with the use of the RFI process and outlines a potential solution.

A Tangled Web: Contract Dispute Resolution Process
By Sean Devenney and Shelley McCoy – January 30, 2013

An examination of the current status of the evidentiary rules with particular emphasis on the federal evidentiary standard relating to settlement negotiations and the relationship between that standard and the industry form contracts.

To Expand Contractual Liability Exclusion or Not to Expand?
By Jim Warren and Brent Cole – January 30, 2013

Have you considered the real value of doing alternative dispute resolution (ADR) research in your case?

Changes to Oklahoma's Prelien Notice Requirements
By Gerald G. Stamper – January 9, 2013

The state legislature has made several statutory changes that are intended to clarify and simplify the requirements for prelien notices.

2012

Statutes of Repose Present Interpretive Challenges statutes of repose.
By Alexander X. Saunders – October 19, 2012

Courts confront difficult issues regarding when the statute is triggered and how to handle apportionment problems.

Green Building: Limitations Clock Starts at First Sign of Trouble
By Jeanne Schubert Barnum and Levi Jones – September 10, 2012

When contracting parties first notice defects in green building materials, they must investigate thoroughly and act promptly to preserve their legal claims.

Building Commissioning and the Role of the CxA
By Richard W. Gaeckle – September 10, 2012

Building commissioning verifies that the energy systems are installed and that they perform in accordance with the OPR, the BOD, and the construction documents.