Litigating Complex Construction Disputes
For construction lawyers, there are cases, and then there are cases. Defending a general contractor being attacked from the top by an owner, from the side by the architect, and from below by the subcontractors and suppliers on an office tower project. Championing a condominium owners’ association facing many millions of dollars in repair costs caused by defective construction. Roads, hotels, stadiums, tunnels, factories, power plants . . . .
The stakes are high, the issues complex, and the lawyer is surrounded by dragons that need slaying. It is easy to become overwhelmed by the volume of letters, phone calls, emails, pleadings, discovery requests, and strategic decisions that must be made quickly. Assigning an army of lawyers to a case will only go so far. Yes, Fortune 500 companies can turn over every leaf, review every document, and interview every witness, along with his or her barber or hairdresser. Knowing the facts is critical, of course.
But facts about what? Which events? Which issues? Which witnesses? If the case is going to trial, the lawyer must whittle down ten million potentially relevant documents stored in the hard drives, bankers boxes, and filing cabinets of the parties to three hundred for the jury.
Technology has improved over the years, making document review and case management much more efficient. When I started practicing law, reviewing documents could mean a trip to Chicago, or to the project site, or to the opposing attorneys’ office, or to a warehouse off Highway 17, or to a spider-infested tool shed in the swamp to rummage through stacks of boxes. Today, document review means logging on to a computer and running search queries. Easier, but not nearly as exciting or dangerous.
While technology has made us more efficient, lawyers must still know the fundamentals. Complex litigation requires the lawyer to set up a good data tracking and collection system, a clear delineation of responsibility among the team members, and systems to deal with the volume of discovery requests, letters, and other incoming and outgoing paper.
But above all, the lawyer must decide what he wants the jury to know about his client’s case. The lawyer will not dump hundreds of documents in the jurors’ laps for the jury to sort out. The lawyer will not utter the words “subsequent to,” “had occasion to,” or “exited the facility.” Instead, the lawyer will tell the jury what they are about to see. “In this case, you will see how a bad survey cost ABC Contracting millions of dollars, and you will see how the project owner tried to cover up the surveyor’s mistake and leave ABC holding the bag.” Once the lawyer decides on his theme of the case, the lawyer can truly put the important documents, testimony, photographs, and other evidence to work for his client.
And that, Charlie Brown, is the art of litigating a complex construction case.
Photo of Fantasy City attr. Kimon Berlin, WikiCommons