Construction Litigation


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


Contracting During and After COVID-19
By Brian R. Gaudet
Documenting and negotiating risk when that risk is a pandemic.

Two Methods to Avoid Costly Construction Litigation or Arbitration
By Ronald Williams
Moving parties off positions taken in litigation or arbitration can be much more costly and time-consuming than moderating positions in a face-to-face meeting or mediation.

Data Security for Owners
By Kelly Ruane Melchiondo
Owners need to be proactive in protecting a very important asset on their construction projects—the project data—from catastrophic loss.

State Laws May Invalidate Forum Selection Clauses in Construction Contracts
By Whitney Judson
Even if a construction contract contains a forum selection clause, parties to the contract must give careful consideration to the laws of the state where the project is performed.


It’s Complicated: Mediating Multiparty Construction Disputes

By Scott St. Marie – September 6, 2019
The author discusses challenges arising in the mediation of construction disputes involving numerous parties, and shares approaches a mediator should consider to enhance the prospects of successful resolution.

Are Your State’s Construction Laws Ready for Bitcoin and Other Cryptocurrencies?
By Thomas D. Franklin and Brian R. Gaudet – September 6, 2019
Bitcoin and other cryptocurrencies are going to become more widespread in the near future.  Are our various state construction payment statutes ready for this inevitability? Probably not.

The Future of Forensic Schedule Delay Analysis
By John C. Livengood -- September 6, 2019
Time is an essential element of all construction projects, and construction professionals should all be aware of the principal issues associated with extensions of time and delay claims.

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.

Global Construction Disputes – Basics on U.S. Domestic Versus International Arbitration
By Daniel B. Swaja – March 12, 2019
A look at some important considerations associated with international arbitration as well as how U.S. domestic arbitration and international arbitration differ.


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.


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.


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.


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.


Advising Clients of Arbitration Awards and Vacatur of an Award
By Chad Cron and K. Stefan Chin – May 30, 2019
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 – May 30, 2019
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 – May 30, 2019
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 – May 30, 2019
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 – May 30, 2019
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.


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 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.


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.

Implications of the International Green Construction Code
By William E. Kelley Jr. – September 10, 2012
The IgCC represents a paradigm shift in green building, and prudent construction lawyers should prepare themselves now to protect clients.

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.

EPA Compliance Orders Subject to Immediate Judicial Review
By Logan A. Hollobaugh – September 10, 2012
Compliance orders on construction projects are now subject to immediate challenge, giving clients and attorneys new options when faced with possible fines.