Presenting Your Case from Day One: Important Tips Every Construction Litigator Should Keep in Mind During Discovery and Litigation

As a litigator looking toward a trial or arbitration hearing, you’re herding a gaggle of wild cats, and the technical presentation considerations are often parked on the back burner.

That’s understandable. You’re knee-deep in the facts about the case, focused on keeping your arguments and witnesses organized.

But all that detailed knowledge can sometimes bog you down when it’s time to present the information to an audience hearing about everything for the first time. Working with a professional trial technician early in the process can alleviate stress while ensuring your message gets shared clearly.

Here are six tips to start thinking about early in your case and during discovery so that your presentation can be as effective as possible when the time comes:

1) Make It Look Good (and Readable!) – File Quality and Formats

When you’re presenting information on a screen or television to an audience across the room, it’s not easy for them to see fine print or complex visuals up close. That means the quality of the file matters. If your document or picture is from a low-resolution scan, skewed, or grainy, then you’re sacrificing clarity and credibility.

Start thinking about this when you’re collecting and reviewing documents during discovery – you have it on a screen right in front of your face, but how will it look in a large courtroom or conference room from several feet away? Make sure you have the cleanest, clearest version possible for presentation purposes. 

2) Paint Your World in Living Color When It Can Make a Difference

Construction matters involve a LOT of documents, images, and videos, so you might be tempted to reduce file sizes by converting color files to black and white, or reducing the resolution quality. While that might be helpful in discovery to store files in a review database, it could fall colorless on your audience. 

Humans tend to respond better to full-color exhibits (especially pictures!), and a grayscale version can be dull and disorienting. Make sure you have a vibrant, full-color version of the important pictures and documents you need to present to your audience.  

3) Don’t Let Bates Bite You in the Asking – Keep the Numbers Clean and Simple

When you review documents and files in a review database for production, there is always some kind of “document ID” or reference number to keep track of everything. We may use those numbers when producing documents, or we may assign Bates numbers as requested. It sounds simple enough, but when there are multiple productions, it can get confusing with overlapping numbers, irregular gaps, and general inconsistencies. It’s critical to use a bona fide ediscovery platform to manage the craziness, but simpler is better when it comes to referencing those file names in presentation. 

For example, a Bates number such as ACME-00001 is far easier to juggle between you and your trial technician than something like ACME-DEF01-PROD0001-EX00001. Keeping it simple makes it far easier for the attorney to request the right exhibits on the fly. It also reduces the chance of errors and miscommunication in the heat of the moment. 

4) Provide the Right Context – Email Attachments and Related Documents

When you review documents in a database, related files may not always be grouped together. It’s important to review each individual document, whether it’s an email with attachments, or a scanned set of documents that were paper clipped together. But when you’re ready to present that information, you need to consider whether certain files should be packaged together. Most people think of an email and its attachments as a single communication, in which case your trial technician will need to ensure they can easily be presented as a unit. 

5) Maximize Your Video’s Visual Impact – Sync, Clip, and Let It Be Heard

A picture is worth a thousand words, but a video speaks volumes! If you think ahead and video-record your depositions, that will be so much more powerful to show body language, hesitations, and general character traits, rather than reading a printed transcript.

Your trial technician can easily create quick video clips from a recording, especially if you request sync text transcript with the video. Most court reporting agencies offer this service for a small charge, but the investment absolutely pays off when clips can be created with a couple clicks of the mouse. Don’t wait until the last minute to get the video and text transcript synced. 

The visual part of a video is only 50% of the equation - it also has to be heard clearly. Make sure you test out the speakers and audio connections so there’s no dead-air in your presentation. 

6) Engage with your Trial Presentation Technician as Early as Possible 

Whether your paralegal or associate drives the presentation, or you work with a professional "hotseater," please do yourself a favor and bring them into the discussions as early as possible. Professional trial technicians can bring their experience to make sure your complex diagrams and drawings are simplified for your audience. You personally may understand the most complex diagram involved in a case, but if you can’t visually break it down for your audience, then you might as well be talking gibberish.

Following these six tips on proactive planning for presentations will put you in the best position to seamlessly convey your message to your audience. It’s important to start thinking about the final stage as you go through discovery and production, since those activities can impact the success of your presentation – which will ultimately make or break your case.

If anyone is interested in learning more about these and other eDiscovery issues, Nextpoint is hosting a webinar with EDRM titled “5 Unique Challenges in eDiscovery for Construction Litigation (And How to Solve Them)” on October 16, 2025, and you are invited. Click here to learn more and save your seat.

Additional Resources:

• Trial Prep eGuide: The Essential Guide to Preparing and Presenting Your Case
• Case Management Checklist: A Step-by-Step Plan for Comprehensive Litigation Success
• Deposition Prep Kit: Attorney's Guide to Preparing for Depositions

The Economic Loss Rule and Tort Claims by Owners against Design Professionals

This blog post looks at the question of when a project owner, who has a contract with the design professional, may assert an action against a design professional in negligence for purely economic losses. Actions against design professional can arise under a number of legal theories, but the two most common are contract and tort. Tort claims focus on duties imposed by law, while contract claims center on obligations agreed upon by the parties. The distinction often determines whether a plaintiff can recover purely economic losses and whether privity of contract is required.

The distinction between contract and tort is significant due to the availability of different remedies, limitations periods, and burdens of proof. It is normally to a plaintiff's advantage to get both tort and contract claims before the trier of fact when the same facts will sustain either cause of action, because access to multiple theories of recovery may permit a plaintiff to avoid legal or remedial pitfalls which may apply to one cause of action but not another. Niagara Mohawk Power Corp. v. Stone & Webster Eng'g Corp., 725 F. Supp. 656 (N.D.N.Y. 1989).

Economic Loss Rule

In some jurisdictions the ability to recover purely economic losses in tort is limited or precluded by the economic loss rule. “The economic loss rule holds that when the bargained-for level of quality in a contract is not met, the law of contracts provides the sole remedy. Tort recovery is not available because the contract defines the breach and the damages.” McConnell v. Servinsky Eng'g, PLLC, 22 F. Supp. 3d 610 (W.D. Va. 2014).

Jurisdictions That Apply the Economic Loss Rule to Tort Claims against Design Professionals 

As the Hawaiian Supreme Court has noted: “In the context of construction litigation involving design professionals, sound policy reasons counsel against providing open-ended tort recovery to parties who have negotiated a contractual relationship.”  The court went on to state that if tort and contract remedies were allowed to overlap, certainty in allocating risk would decrease and the construction industry would suffer, because it is the industry in which we see most clearly the importance of the precise allocation of risk as secured by contract. City Exp., Inc. v. Express Partners, 959 P.2d 836 (Haw. 1998).

The Arizona Supreme Court, following the same logic, held that the economic loss rule precluded an owner’s claims against an architect whose designs for an apartment complex did not comply with HUD regulations, and which required the owner to incur substantial costs to come into compliance with those regulations. The court went on to state that in the construction defect context, involving only pecuniary losses, there were no strong policy reasons to impose tort liability in addition to contractual remedies. “The economic loss doctrine appropriately applies in this context because construction contracts typically are negotiated on a project-specific basis and the parties should be encouraged to prospectively allocate risk and identify remedies within their agreements.” Flagstaff Affordable Hous. Ltd. P'ship v. Design All., Inc., 223 P.3d 664 (Ariz. 2010).

Jurisdictions That Do Not Apply the Economic Loss Rule to Tort Claims against Design Professionals 

Nonetheless, some jurisdictions, even those that apply the economic loss rule in other contexts, allow tort actions against design professionals by project owners. In Florida, which applies the economic loss rule in products liability cases, the Florida Supreme Court has held that the economic loss rule did not bar a cause of action against a design professional for negligence, even where purely economic damages resulted. Moransais v. Heathman, 744 So.2d 973 (Fla. 1999).

Similarly, the Fifth Circuit, applying Mississippi law, has held that the economic loss rule did not preclude negligence claims against an engineer, because Mississippi law did not apply the rule outside the context of products liability. Lyndon Property Ins. Co. v. Duke Levy and Assoc., 475 F.3d 268 (5th Cir. 2007).

Alaskan courts have created an exception to the economic loss rule for matters involving design professionals and have held that “a project owner may sue a design professional in tort for economic losses arising from the professional’s malpractice, despite the existence of a contractual relationship between the parties.” State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Nebraska, which generally limits the economic loss rule to products liability and breaches of contractual duties where no independent tort duty exists, allows tort claims by owners against design professionals, even in the absence of personal injury or damage to other property. Getzschman v. Miller Chem. Co., 443 N.W.2d 260 (Neb. 1989).

Louisiana also appears to recognize the right of a project owner to pursue tort claims against a design professional. However, a tort claim versus a contract claim may be something of a distinction without a difference, as Louisiana does not broadly apply the economic loss rule and the limitations period is likely the same regardless of whether the claim against the design professional is in tort or contract. See City of Shreveport v. CDM Smith, Inc., 2025 WL 1947593.

The Special Relationship Exclusion to the Economic Loss Rule

Finally, even in jurisdictions that do not allow tort claims by owners against design professionals because of the economic loss rule, there may nonetheless be a cause of action in tort if there is a special relationship which creates a duty of care. See, e.g., Niagara Mohawk Power Corp. v. Stone & Webster Eng'g Corp., and Blahd v. Richard B. Smith, Inc., 108 P.3d 996 (Idaho 2005).

Conclusion 

In conclusion, while negligence actions by project owners against design professionals may be precluded by the economic loss rule in some jurisdictions that apply the rule broadly, other jurisdictions either do not apply the economic loss rule in the context of design professional negligence or have created exceptions that allow such claim. In some jurisdictions that do not allow tort claims by an owner against design professionals because of the economic loss rule, there may still be a cause of action in tort when there is a special relationship that creates a duty independent of the contractual relationship.

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Author and Editor Stu Richeson is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.

Muhammad Ali, a Chocolate Chip Milk Shake, and a $100 Dollar Bill

In 1982, I was 16 years old and was attending a tiny Jewish high school in the basement of Temple Beth El on Crescent Heights. Upon my daily release from the dungeon, I would walk up to Sunset Boulevard to go to Schwab’s Pharmacy where I could grab something to eat. Schwab’s closed later that year, and I didn’t know it would be one of the last times for me to hang out at the favorite place of James Dean, Marilyn Monroe and Elvis Presley. On my way there, I would walk pass Coconut Teaszers, a punk rock venue, and Baskin Robbins Ice Cream Shop.

When I needed a job to buy a car, the manager at the Baskin Robbins (who was a friend of mine) hired me. Every day after high school, I scooped and restocked ice cream, mopped the floors, cleaned the bathrooms, and wore a silly uniform that invited my friends to come by to tease me. The job wasn't glamorous, but I was happy to earn some spending cash to buy the much-desired parachute pants and moon boots so I could dress the part for the upcoming Duran Duran concert at the Forum.

One day, a Rolls Royce drove into the parking lot and out came a tall, well-dressed man. He walked up to the counter to place an order. Looking at him, it took me a few seconds to register it was Muhammad Ali. “Muhammad Ali!” I blurted out. He responded, “Yes, that’s my name. Now here is what I want you to make me.” He continued, “I want a milk shake with chocolate chip ice cream and vanilla syrup.”  “Yes sir”, I said, and off I went to make a milk shake for the Champ. My co-worker was as stunned as I was; we worked in tandem making the best chocolate chip, vanilla syrup milkshake in the world. We blended the frozen concoction and proudly served it up in a large paper cup. “Would you like whipped cream Mr. Ali?” I asked. “No thank you,” he replied. As I handed him the milkshake, he popped a $100 dollar bill onto the counter and said, “keep the change.” And just like that he was gone.

At 16 years old working for $3.35 an hour I don’t know if I was more shocked by meeting the Champ or by realizing my cut of the $100 was $50. We didn’t even ring up the sale, we simply put the $100 dollar bill in the register, and each took out $50. When we told the store owner what had happened, he smiled and said “yep, Ali comes in here all the time, usually on a Thursday afternoon.” Guess who was on the schedule every Thursday?

I only saw the Champ two more times. But it was the same routine: chocolate chip shake, vanilla syrup, and a $100 dollar bill. The only difference was, once we saw that Rolls Royce drive in, we raced to work making sure that shake was ready for Mr. Ali the second he walked in the door. He smiled with pleasure knowing that we respected that the Champ should not be kept waiting a second for his treasure. We proudly presented his order before he needed to ask for it. “Mr. Ali, your chocolate chip shake with vanilla syrup.” Each time, he would smile and place a $100 dollar bill on the counter before leaving.

There wasn’t anyone there to see Mr. Ali's graciousness. But what he did made a difference in the life of a young punk. Was he even there for a chocolate chip shake or did he just love the idea of treating us to his presence and generosity?

My job at Baskin Robbins ended in infamy when I instigated an ice cream food fight and was subsequently fired, but my memory of serving “The Greatest” will forever be frozen in my mind.

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Author Joel Bertet provides mediation services focused on resolving disputes in the construction and real estate sectors. With 30 years of experience, Joel is an established construction lawyer, legal advisor, licensed General Contractor, and Licensed Real Estate Broker. Joel can be contacted at joel@resolvebertet.com.

Top 10 Take-Aways from the 2025 Fall Forum Meeting in Louisville

Last week saw the first-ever meeting of the ABA Forum on Construction Law in Louisville, Kentucky. The event brought together over 500 attorneys, ADR neutrals and consultants for what was the first meeting helmed by incoming Forum Chair, Tracy James. Thanks to the hard work and dedication of countless individuals, including but not limited to Program Coordinators Colbie Campbell and Liz Kraengel, the program was an unbridled success. Focused on all things contract negotiation and project start-up, it was fitting way to kick off the 2025-26 year of programmatic excellence. As usual, the lessons learned were many and varied but read on for my top 10 take-aways.

10. The Kentucky Derby is the most-watched and most-attended horse race in the United States. The iconic Louisville race has been run every year since its inception in 1875. Traditionally held the first Saturday in May as the first leg of the Triple Crown, the Derby is referred to colloquially as the "run for the roses" and "the most exciting two minutes in sports." While the Derby event itself is brief, the Churchill Downs is a bustling city of racing-related activity for most of the year and stables over 1,400 horses annually. Travis Stone (the voice of the Kentucky Derby) and Derby bugler, Steve Buttleman (who has been playing the "call to the post" at Churchill Downs for over 30 years) opened the Fall Meeting in grand style with a live demonstration of their skills and a little bit of Derby spirit.

9. Don't settle for business as usual when it comes to arbitrator selection. When it comes to arbitrator selection in complex disputes, business as usual may no longer cut it. At the Division 1 lunch Wendy Venoit and Sean Dillon spoke of newer, more robust tools which parties can avail themselves to ensure that all of the arbitrator candidates they are presented with have the expertise and calendar availability needed to effectively resolve the dispute at hand. The AAA-ICDR offers an Enhanced Arbitrator Selection process on large, complex cases, which allows parties to receive additional information before making their selections. Gone are the days of having to stealthily suss out the predilections of your potential panel...if the parties agree, they can submit questions for candidates to answer, ask the AAA to pre-screen candidates by certain criteria, or the AAA can arrange for all parties to interview the candidates by telephone or video call. 

8. "There is no such uncertainty as a sure thing." As exemplified by this quote by Robert Burns, certainty in contractual rights and remedies can often be elusive. Owners and contractors who drive hard bargains during contract negotiations to impose overbearing, one-sided contracts on downstream parties may be surprised to eventually find out that the "ironclad" provisions they negotiated (such as aggressive forum-selection clauses, indemnity and LD provisions) may not actually be enforced when conflicts arise. Whether contrary to statute, public policy, or the intent of the parties, overly aggressive contract provisions are never a sure thing. To make matters worse, the can make their beneficiaries overly complacent and overbearing in claims negotiations. To truly avoid conflict on your projects, the better course of valor, according to panelists William Geisen, Kristine Kubes, Matthew Mendoza, and Rob Ruesch, may be to deal reasonably (and communicate openly) with project participants.

7. Customize your payment provisions. From (a) contracting the right to stop work if unprocessed change order requests exceed a certain amount to (b) requiring that the owner deposit contested sums into an escrow account, there are many ways to modify payment terms to better suit a project's needs. John Slates and Lauren Catoe reviewed payment-related contracting considerations; and, while treatment of stored materials is never the first thing on anyone's mind, they cautioned attendees not to overlook the importance of requiring a contractor to label and segregate materials procured for their project. Otherwise, if the contractor in possession of the materials declares bankruptcy, the stored materials (even ones the Owner has paid for) could become part of the debtor's estate.

6. Pick your protection when it comes to performance security. Performance security mechanisms are risk-management tools designed to ensure that contractors fulfill their contractual obligations. While retainage and payment/performance bonds are perhaps the most frequently used tools to ensure a contractor and its subs will abide by their obligations, according to Nick Brooks, Patrick Kirby, and Kristen Sherwin, there are a variety of other tools that can operate to protect owners and avoid the potentially debilitating ramifications of contractor/subcontractor default on a project. The less utilized options include parent guarantees, Subcontractor Default Insurance, and Standby Letters of Credit. Whether and which of these tools are appropriate will depend on the nature, size, and complexity of the project.

5. Spearin may not be all that it's cracked up to be. Under the well-known Spearin doctrine, liability for defective design rests with the owner in traditional DBB projects; however, it may be explicitly contracted out by clauses that shift design verification duties to the contractor. This can be accomplished in a variety of ways such as by requiring the contractor to comply with performance specifications (rather than traditional prescriptive specifications), validate constructability or “fitness for purpose”, verify all dimensions and conditions, or assume responsibility for design adequacy. That said, panelists Laurie Choi, Kimberly Davison, and Kendall Woods offer this word to the wise for any owner attempting to divorce itself of design liability: courts require such disclaimers to be clear and specific. Ambiguous language can fail to override Spearin and may be presumptively void depending on the jurisdiction. And, if the owner drives too hard a bargain they may unwittingly draft themselves out of insurance coverage for future claims.

4. Closeout should start during pre-construction. This was the takeaway from panelists April Parrish, Sunu Pillai, and Max Taylor. Closeout should not be an afterthought as it is an important milestone in the life cycle of a project and for good reason; it signals the fulfillment of contractual obligations, enables release of final payment and retention, and provides Owner with the documentation it needs to operate and maintain the completed facility. It is a mistake to wait until the end of the project to start thinking about what will be needed for final completion. Including project closeout in a meeting focused on contract negotiation was done because “successful closeout hinges on having well-defined expectations from day one,” beginning with clear communication during scope reviews about what closeout deliverables will be required. Good documentation throughout the project, particularly in relation to change orders, will help ensure the closeout process proceeds smoothly.

3. Float like a butterfly, sting like a bee. Muhammad Ali was born as Cassius Clay in a racially segregated Louisville in 1942. He famously started to box at the age of 12 after his bicycle was stolen. From a place of powerlessness, he would eventually rise to become the greatest boxer and one of the most recognizable athletes the world has ever known. Ali had a penchant for creating rhymes (the bee/butterfly tagline being perhaps his most famous) and has been credited with being the first-ever rapper. Known equally well for his activism, Ali was a principled man of many talents. Attendees of the Forum's Fall Meeting received an insider's view into Ali's life at the Muhammad Ali Center, a museum dedicated to honoring and celebrating Ali's principles of peace, social responsibility, respect, and personal growth.

2. DEI is not dead. Despite mounting pressure and political scrutiny, not all companies are distancing themselves from their long-standing commitments to diversity, equity, and inclusion (DEI). Jimmie McMillian, the Chief Diversity Officer and Senior Corporate Counsel at the Penske Entertainment Group (which includes the Indianapolis Motor Speedway) shared what Penske is still doing to foster and promote diversity in the motorsports industry. In a compelling and inspirational Q&A with Sam Laurin, Jimmie spoke of his work for the Race for Equality & Change, an initiative to provide opportunities for underrepresented women and men in the motorsports industry and open-wheel racing. Beyond the initiative’s mentorship programs for students and bringing more diversity in racing, Jimmie hosts thousands of young people at the Speedway each year to get them excited about the sport.

1. "Building the best construction lawyers" necessitates that we address mental health. In a first-ever-of-its-kind presentation, the Forum invited Daniel Lukasik, New York State Judicial Wellness Coordinator, to present on the mental health challenges that face the legal field. Daniel shared the grim statistic that, according to a 2016 poll of 13,000 attorneys, it was discovered that 28% suffered from depression and 11.5% had experienced suicidal ideations, levels which are 4 times higher than the rates seen in the general population. According to the National Task Force on Lawyer Well-Being, poor mental health and well-being in the law are driven by a "parade of difficulties" which includes work addiction, sleep deprivation, job dissatisfaction, work-life conflict, incivility, a "narrowing of values so that profit predominates," and negative public perception. Even those lawyers (and law students) who do not develop mental illness or substance use disorders as a result of these forces still may not be thriving. One study suggested that attorneys feel depleted/exhausted, pessimistic towards their works, and ineffective about half of the time. These sentiments are precipitated by a combination of heavy workloads, long hours, demanding clients/colleagues, a feeling of lack of control, lack of recognition, toxic work environments, and fear of job loss. While there are tools each individual can use to improve their mental health (engaging in deep breathing exercises and expressions of gratitude to name a couple), legal organizations also need to acknowledge and mitigate mental health impacts to help create positive and healthy workplaces.

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Author and Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Making the Case for Standing Construction Mediators on Every Complex Construction Project

Construction abandonments of private projects have hit an all-time high. Private developers scrapped more projects in May 2025 than in any other month on record, according to the latest data from Cincinnati based ConstructConnect.

The Project Stress Index is a measure of construction projects that have been paused, abandoned, or have a delayed bid date. “Abandonment activity has continued to rise, reaching its highest reading in over a year,” said Devlin Bell, associate economist at ConstructConnect. For the month of May 2025, private abandonments increased 62.6% over the month and are now up 92.2% year over year. That surge has led to the highest level of abandonments since ConstructConnect began tracking data in mid-2019.

On top of that, contractors are facing increased cost pressures as prices for key materials surge under the Trump Tariffs. “The acceleration in the year-over-year rate of increase is alarming, given that most of the tariffs announced so far were not in effect when these prices were collected…It is likely that contractors will be hit with substantial additional price increases shortly, unless the tariffs are rolled back,” said Ken Simonson, Chief Economist at the Associated General Contractors of America.

This level of stress sets the stage for a coming storm of epic disputes in the construction industry. Those that prepare for the storm by taking proactive steps to prepare will fare better than those that simply wait for the post storm clean-up efforts.

The Case for Standing Construction Mediation

Construction is a technical and complex industry. The best drafted construction contracts attempt to consider the complex and shifting sands in a construction project. Common issues such as change orders, cost overruns, changes of scope, building code challenges and even tariffs are now commonly dealt with. Even so, disputes are bound to arise and are part of the process. It is a process that is traditionally full of challenges and problems. The best players in the industry understand this difficult and challenging process and tend to be experts at getting to the finish line through the mine field.

However, even the best of the best will be challenged when the industry faces this tsunami of economic challenges. Record-breaking abandonments coupled with unforeseen cost increases have set the stage for an explosion of construction disputes. Construction projects under normal economic times are fraught with challenges and disputes. We are now treading in unchartered waters where tariffs and economic indicators are putting untold pressures on the industry. The normal number of disputes and complexity of the challenges have just become multiplied by exponential levels. 

A Standing Construction Mediator contracted on your project is your construction litigation insurance policy. No one would build a construction project without insurance. Insurance coverage is a fundamental part of any construction project. Insurance coverage often times continues for years after project completion. It would be unfathomable for anyone to build without insurance coverage. 

Why would you get into a project knowing that disputes will be exponentially higher than in previous years without a mediator on hand to help navigate the guaranteed problems and disputes.

Yet we build without mediation coverage. A Standing Construction Mediator is your insurance policy against the growing risk of construction dispute in today’s economy.

The Benefits of Standing Construction Mediation

A Standing Construction Mediator becomes an integral part of the construction project from the outset. They are brought into the project by the owner early in the process at the time of selection of Architects, Engineers and General Contractors. The Standing Construction Mediator (SCM) is proficient in the technical world of construction and is familiar with the fundamental areas of construction such as finance, architectural plans, engineering plans, building process, general contracting, sub-contracted trades, suppliers and building codes. The SCM will be written into all contracts with key parties and shall be ready to serve anyone who has a dispute that arises during the project. Time is of the essence in a construction project and delays caused by disputed change orders requests, disputed cost overruns disputes and delayed performance result in enormous costs to all the parties involved.  When these disputes cannot be resolved quickly and efficiently, they morph into legal battles which often times get put onto the back burner to be resolved through litigation after completion of the project. Meanwhile, the dispute at hand will cause costly delays, mechanics lien issues, stop orders, and cash flow challenges for all affected parties.

With a SCM involved in the process such disputes can be resolved immediately because:

1) The SCM is familiar with the full scope of the project having reviewed all key construction documents and all key player contracts (GC, Subs, Suppliers, Architects, Engineers and related professionals). 

2) The SCM is included in all contracts along with the process for dispute resolution during the course of construction. 

3) The SCM makes themself immediately available to resolve all course of construction disputes either by in person at the construction site or via zoom.

4) The dispute is resolved immediately and before it has a change to grow from spark to fire.

5) There is a balance of power between all parties allowing for equal access to dispute resolution during the construction process.

An Example of SCM at Work

A tile subcontractor is hired by the General Contractor (“GC”) on a hotel project to supply and install tile specified according to plans. The installation schedule is moved back six months due to construction delays caused by building inspection corrections. The tile subcontractor was informed of the six-month delay and, as a result, does not purchase the tile for another 5 months to preserve cash flow. Five months later, tile subcontractor is informed by tile supplier that there is an increase of 20% on the tile due to tariffs and increased shipping costs and that the tile is now on back order and will not be available for another 4 months. The additional 20% charge in tile will cost the tile subcontractor $50,000. The tile subcontractor also loses another job where it could have made $500,000 profit which it had scheduled to start in six months. The tile subcontractor informs the GC that there will be: 1) a $50,000 change order; 2) 4 months further delay; and 3) a consequential damage claim for its lost $500,000. 

The GC refuses the change order of $50,000 stating that the tile subcontractor should have purchased the tile earlier. The GC then informs tile subcontractor that it must start in six months, and that the extra 4-month delay is not the GC’s problem. The GC sees the $500,000 lost profit claim as an insult and is now more inclined to fire the tile subcontractor, hire another sub, and hold the tile subcontractor liable for additional costs involved.

Without an SCM, this would have a classic end with the tile subcontractor walking off the job and ending the relationship with this GC. The GC would hire a substitute tile subcontractor at a higher cost resulting in his presenting the owner with a change order resulting in added friction or possible litigation between the owner and GC. The GC who played hard ball with the tile subcontractor would now find himself at the mercy of the owner who would tell the GC he was hired to manage all subs and suppliers and that he should have verified that the tile was purchased on time instead of relying on a tile subcontractor and thus was not paying for the additional cost of tile or the new tile subcontractor costs.

With an SCM, the tile subcontractor would have called the mediator and requested an immediate mediation of the matter. The SCM is on call for precisely this type of dispute and would immediately rise to the challenge. A mediation would be immediately scheduled and either through on-site visits, phone calls or zoom meetings, a successful mediated settlement would result. Solutions agreed to, delays minimized, relationships preserved, and the project continues with a reasonable settlement of the dispute. 

Why not simply bring in a traditional mediator to address such issues. Why the need for an SCM?

1) Expert construction mediators are normally booked out for 6-12 months.

2) General mediators with no construction specialization are less well equipped to deal with such technical disputes and are usually not immediately available either and can be cost prohibitive. 

3) The SCM is precisely contracted for this scenario and is already familiar with the scope of work and all contracts and is “on call” to resolve these types of disputes.

What is the Process for Hiring an SCM?

An SCM is typically brought into the project before any key contracts are signed. An initial flat fee is paid to the SCM for review of the scope of work and for involvement in contract review and SCM contract terms.

Next, the SCM process is included in all contracts between the parties with clearly defined steps for mediation of disputes arising during and after project completion. A fixed hourly rate is set for the SCM services which is split evenly among the interested parties.

The parties are introduced to the SCM early in the process and are provided all the information necessary for them to understand how they can get the SCM involved to help mediate and resolve disputes as they arise.  Should mediation not resolve the dispute, the parties are free to continue the traditional trajectory towards litigation (or arbitration).

Given the recent statistics which will give rise to enormous construction disputes, it is now more important than ever to have the insurance of a SCM on retainer to push projects through the steps of completion rather than to the steps of the courthouse.

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Author Joel Bertet provides mediation services focused on resolving disputes in the construction and real estate sectors. With 30 years of experience, Joel is an established construction lawyer, legal advisor, licensed General Contractor, and Licensed Real Estate Broker. Joel can be contacted at joel@resolvebertet.com.

Dispositive Motions in AAA Construction Arbitration: Why You Should Think Twice

When involved in a construction arbitration under the AAA rules, the urge to file a dispositive motion can be strong. After all, wouldn't it be beneficial to eliminate your opponent's case early and save the time and expense of a full hearing? However, before drafting that motion to dismiss or motion for summary judgment, take a moment to consider if it's truly the best strategic choice.

The AAA's Measured Approach to Dispositive Motions

The AAA Construction Industry Arbitration Rules adopt a notably cautious stance toward dispositive motions. Rule R-34 states that arbitrators may allow such motions "upon prior written application," but only after evaluating "the time and cost associated with the briefing of a dispositive motion." The rule explicitly mandates that arbitrators consider whether permitting the motion aligns with "the goal of achieving an efficient and economical resolution of the dispute."

This language isn't accidental as it reflects the AAA's recognition that dispositive motions often do more harm than good in the arbitration context. Unlike federal courts, where summary judgment motions are common, arbitration's informality and focus on efficiency influence how they are handled.  The rule’s design makes dispositive motions the exception rather than the rule.

The Two-Step Hurdle: Permission First, Then Success

Here's what many attorneys miss: filing a dispositive motion in AAA construction arbitration is actually a two-step process. First, you must get the arbitrator's permission to file the motion. Second, if granted leave, you must actually win on the merits. This creates a double hurdle that significantly reduces your chances of success.

Step 1: Getting Permission

The arbitrator will assess whether your proposed motion promotes efficiency and cost-effectiveness. Since construction disputes often involve complex facts, site conditions, performance standards, and technical specifications, arbitrators are usually doubtful that legal motions alone can resolve disputes without a hearing.

Step 2: Winning the Motion

Even if you obtain permission to file, remember that arbitrators are instructed to resolve disputes based on the evidence presented. Most construction disputes involve mixed questions of law and fact that are difficult to settle decisively.

Know Your Arbitrator: Background Matters

The success of any dispositive motion strategy heavily depends on understanding your arbitrator's professional background and approach. AAA construction arbitrators typically fall into several categories:

• Former judges and retired judges: Judges may be more open to dispositive motions because they have dealt with them regularly during their judicial careers. However, they also recognize that construction cases rarely lend themselves to quick resolution based solely on legal arguments.
• Construction industry veterans:  Engineers, architects, project managers, and construction executives who serve as arbitrators often prefer to "get into the weeds" of technical issues. They may see dispositive motions as an attempt to sidestep the substantive construction issues they are specially qualified to assess.
• Construction Lawyers: Attorney-Arbitrators with construction backgrounds understand both the legal framework and the practical realities of construction projects. They may be more open to considering dispositive motions but will carefully scrutinize them for their potential to resolve the dispute.

The Practical Problem: Most construction arbitrators became arbitrators precisely because they want to resolve disputes on their merits, not on procedural technicalities. Filing a dispositive motion may suggest to the arbitrator that you're attempting to avoid the substantive issues—the very issues the arbitrator was selected to decide.

The Limited Scope for Success

Dispositive motions are most effective when they tackle pure legal questions that don't require factual development. In construction arbitration, such cases are uncommon.

Where Dispositive Motions Might Work:

• Clear contractual time bars or notice requirements
• Unambiguous limitation of liability clauses
• Statute of limitations defenses with undisputed facts
• Jurisdictional challenges to the arbitrator's authority

Where They're Likely to Fail:

• Disputes over the scope of work or changed conditions
• Performance and quality issues
• Delays and disruption claims
• Most breach of contract allegations
• Professional negligence claims

The reality is that most construction disputes involve site-specific conditions, complex sequencing issues, and performance standards that require factual development. These cases don't lend themselves to early legal resolution.

The Cost-Benefit Analysis: A Cautionary Tale

Dispositive motions in arbitration are expensive gambles with poor odds. Consider the costs:

• Time Investment: Researching, drafting, and briefing a dispositive motion demands significant attorney time. Your client will pay for this regardless of whether the motion succeeds or fails.
• Arbitrator Fees: Under Rule R-49(c), arbitrator fees and expenses "associated with a motion or an application to make a motion may be assessed" against the losing party. If your motion fails, you could be responsible for paying not only your own fees but also the arbitrator's costs for reviewing and deciding your motion.
• Delayed Resolution: Even a successful motion may only narrow the issues, not resolve the entire case. The time spent on motion practice could have been used moving toward a hearing date.
• Relationship with Arbitrator: A poorly conceived motion may damage your credibility with the arbitrator. Remember, you'll be appearing before this same arbitrator throughout the proceedings.

The Strategic Alternative: Focus on Case Management

Instead of filing dispositive motions, consider these more effective strategies:

1. Narrow the Issues: Collaborate with opposing counsel and the arbitrator during preliminary hearings to identify and limit the actual disputes.
2. Streamline Discovery: Use Rule R-24's information exchange procedures to build your case efficiently without heavy discovery disputes.
3. Leverage Technical Expertise: Focus on developing expert testimony and technical evidence that appeals to the arbitrator's construction background.
4. Conclusion: Choose Your Battles Wisely

The AAA Construction Rules' cautious stance on dispositive motions reflects decades of experience with what works and what doesn't in construction arbitration. While the appeal of an early knockout move is understandable, the reality is that these motions usually consume resources without providing proportional benefits.

Before filing that dispositive motion, ask yourself:

• Is this genuinely a straightforward question of law that can be settled without factual development?
• Will this motion truly benefit my client's interests, or am I merely trying to follow the familiar patterns of federal court practice?
• And most importantly: Would my client's money be better spent preparing for a merits hearing where we have a real chance to win on the substance of our case?

Construction arbitration works best when it concentrates on its strengths: providing efficient, expert-driven resolution of complex technical disputes. Arguing over legal technicalities often detracts from that goal. Choose your battles wisely and save your resources for the issues that truly matter.

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Author Lisa Colon is a partner at Saul Ewing LLP with over 25 years of construction law experience representing developers, contractors, and subcontractors. As both an arbitrator and certified mediator, Lisa brings a unique perspective from both sides of the table in construction ADR proceedings. She regularly serves on AAA construction arbitration panels. Licensed in Florida and New York, Lisa focuses her practice on complex construction disputes, contract matters, and alternative dispute resolution. She can be reached at lisa.colon@saul.com.

Hiring the Right Expert For Your Construction Dispute

Construction projects are complex undertakings, typically involving multiple parties, intricate contracts, and significant financial investments. With so many moving parts, it’s no surprise that disputes often arise over delays, defects, payment issues, or contract interpretation. When these disputes escalate to arbitration or litigation, the technical and specialized nature of construction means that lawyers and judges often need help understanding the facts. Hiring the right expert can make all the difference – but where do you start?

Do I Really Need an Expert?

Construction disputes are complicated. They often hinge on technical details that raise questions requiring specialized knowledge to answer. Without expert analysis, it can be difficult to establish what actually happened, who is at fault, and what damages are appropriate.

Experts bridge this gap by providing objective, professional opinions based on their training and experience. A good expert can explain complex issues and present them in a manner that is understandable to non-specialists. Their advice, reports, and testimony can be pivotal in determining the outcome of a case.

Types of Experts 

The type of expert needed depends on the nature of the dispute. Here are six of the most common:

1. Construction Delay Experts:

These professionals analyze project schedules, identify causes of delays, and determine whether those delays were excusable or compensable. They often use critical path method (CPM) scheduling to provide a clear picture of how and why a project fell behind.

2. Cost Estimators and Damages Experts:

When the dispute involves claims for additional costs or damages, a cost estimator or forensic accountant can assess the validity of those claims by determining the cost of labor, materials, equipment, and other expenses. They analyze invoices, change orders, and project records to determine an accurate project cost.

3. Architects and Engineers:

If the dispute centers on design defects or construction quality, architects and engineers can assess compliance with building codes and standards, evaluate structural integrity, and determine the cause and extent of damages due to structural failures.

4. Construction Safety Experts:

In cases involving accidents or injuries, safety experts can review site conditions, safety protocols, and compliance with OSHA or other regulations to determine if proper procedures were followed.

5. Materials and Geotechnical Experts:

Sometimes, disputes arise from issues with materials (like concrete, steel, or roofing) or site conditions (such as subsurface soil stability). Experts in these fields can analyze how materials including soil or rock behave under various conditions, can test materials, review lab reports, and provide opinions on whether materials or site prep contributed to the problem.

6. Construction Contracts Expert:

These professionals interpret contract documents, evaluate performance and compliance, and assess scope changes, delays, or additional costs related to construction projects.

Five Ways Experts Can Help Resolve Construction Disputes

1. Clarifying Technical Issues:

Experts break down complex technical matters into clear, understandable explanations. This is invaluable for judges, juries, and the parties involved.

2. Providing Credibility:

A well-qualified expert lends credibility to a case. Their objective, professional opinion can carry significant weight in negotiations, mediations, and at trial.

3. Supporting or Refuting Claims:

Experts can support a party’s position or challenge the opposing party’s claims. For example, a delay expert might show that a delay was caused by unforeseen site conditions rather than contractor negligence.

4. Assisting With Settlement:

Many construction disputes are settled before trial. Expert reports can help parties and their counsel understand the strengths and weaknesses of the case, facilitating more informed settlement discussions.

5. Testifying in Court or Arbitration:

If the case does not settle, experts can testify as witnesses, explaining their findings and opinions to the judge or jury.

Timing of Expert Involvement

Early involvement of an expert is generally advantageous for several reasons:

• Early Case Assessment: Experts can assist in evaluating the merits of a case before significant resources are committed to litigation.
• Preserving Evidence: Construction sites change quickly. Early expert involvement allows for site inspections, sample collection, and documentation of conditions before evidence is lost.

· Discovery and Depositions: Expert input can allow for more precise and effective discovery requests and deposition questions, ensuring the information needed to support a case is obtained.

• Facilitating Settlement: Early expert reports can encourage settlement by clarifying the facts, narrowing the issues in dispute, and lending credibility to claims or defenses.

Delaying the retention of an expert can result in missed opportunities to gather critical evidence or allow the opposing party’s expert to shape the narrative.

Conclusion

Construction disputes are a high-stakes, technically demanding arena. The effective use of qualified experts can be critical for resolving disputes efficiently and effectively. For litigators, involving experts early in the process provides the technical insight and credibility needed to achieve the best possible outcome for clients.

Engaging experienced construction litigation experts at the appropriate stage can help navigate the complexities of a case and facilitate a successful resolution.

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Lauren McGinley is a member of Fox Rothschild’s Litigation Department. For more information, please contact her at lmcginley@foxrothschild.com.

This article is provided for informational purposes only—it does not constitute legal advice. Readers should consult legal counsel before taking action relating to the subject matter of this article.

Meet the Forum's In-House Counsel: JOHN KIMON YIASEMIDES

Company: AYA Consulting

Email: Kimon.Yiasemides@AYAConsultingllc.com

Website: http://www.ayaconsultingllc.com

Law School: University of Maryland 

States Where Company Operates/Does Business: Based in the Washington DC area, operates globally

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Q: Describe your background and the path you took to becoming in-house counsel.

A: My background is unique; one that spans many aspects of construction management and construction law. At a recent conference someone referred to me as an anomaly, which I took as a compliment, although I would prefer to refer to myself as a Renaissance Man of Construction Law! My background in construction began with my degree in Construction Management from the University of Florida’s ME Rinker School of Building Construction. Thereafter, I was hired by Centex’s commercial construction division to manage large-scale commercial and educational projects in central Florida. After six years with Centex, I obtained my Juris Doctor from the University of Maryland’s School of Law. In the year prior to law school, I worked as an expert witness with Hill International in Washington D.C. While I also spent some time working for the law firm of Ober Kaler in Baltimore during law school, I decided that what I enjoyed the most was the expert work where I could put the pieces of the puzzles together using forensic analysis. After law school and passing the bar in Maryland, I was able to put both aspects of my education to work by working as an expert and filling the role of in-house counsel for Warner Construction Consultants, Inc. where I worked for 11 years. That experience, along with four more years working at Navigant/Ankura, helped round out the experience that I now employ as a consultant. 

Q: Where do you focus your work? Do you have a specific geographic area?   

A: I now work anywhere in the world. For example, within just the last year or so I worked on cases from Australia, Europe, the middle-east, and across the US. In fact, I have had projects in 6 of the 7 continents over the years (you can probably guess where I haven’t yet had a project). I often explain that I have worked on everything from the Burj Khalifa (the tallest building in the world) to a ‘Naked Pizza’! (It was a local make-your own pizza place, don’t get too excited). But, the in-house type of work I perform is all domestic. 

Q: What kind of work do you do?   

A: The work I do now is in several different capacities. At the most basic level, I can help projects that are struggling with difficult scheduling issues that need a hand navigating large delay impacts while the project is underway. If the dispute needs a third-party expert for forensic schedule analysis or damages assessments, I can also help in that capacity. But I also help companies who need supplemental in-house counsel services when their workload has become too great (for any variety of reasons). Working in these various capacities provides me a way to utilize all of my unique experiences and background. This is why I love working as an independent expert, as I have been doing for the past five years now.

Q: How and when do you interact with outside counsel? In what kinds of matters?   

A: In addition to the roles I just described, I can be of assistance with outside counsel when there are discovery management issues, helping them navigate the best way to find, organize and manage key documents, some of which can only be viewed with specialty software. I can also help interpret, communicate and navigate the construction landscape in a way that helps accelerate their understanding of the case. I have been on both sides: defending depositions and being deposed, preparing discovery and reviewing discovery, and writing contracts and reviewing disputed contracts. This unique experience can provide valuable perspective. 

Q: How can outside counsel best serve a construction company? 

A: I think the best outside counsel are those who can listen and understand the issues in the case and get their hands around the facts so that they can put forth the best arguments. I always say, “the party most in command of the facts most often wins.” When I am working as a third-party expert witness, if outside counsel can hire me early, I can help them get in command of those facts. But if they wait until a month before the expert report is due, it can be a real struggle for us both. Having said that, I would say a proactive lawyer with a clear plan of attack and foresight to know what she will need is optimal. For example, if I am hired before discovery starts, it doesn’t mean she will have me working full-time right away. Rather, I will likely spend a few hours on the matter to provide input on the discovery process (or anything else she needs input on) in order to help with her game-plan moving forward, which is often well worth it in the end.

Q: What qualities/characteristics do you think are helpful to have in a mediator or arbitrator? 

A: Whomever it is, the person must be properly prepared. I have encountered, more than once, hearings in which I am explaining facts in the case on direct testimony, and I can just tell that the arbitrator(s) has not read and does not understand the pleadings and pre-trial briefs in the case. After all the efforts the parties spend in distilling the case in their complaint and pre-trial or mediation briefs, to then see that it was not carefully read and re-read, is such an inexcusable waste. I also always recommend picking an arbitrator or mediator with a construction background, such as a former or seasoned construction litigator. This facilitates their understanding when describing the scenarios of what happened as there is generally no time to bring them up to speed on construction terms and practices. 

Q: What are some characteristics of the best outside counsel you have encountered? 

A: The best attorneys I have worked with are those who at their core are concerned about helping their client reach the best outcome. Sometimes that means reaching an early settlement, while other times it means taking the case all the way to trial. But a firm conviction to making sure the outcome is in the client’s best interest is key. I don't think outside counsel that argue points just for the sake of arguing is an effective or palatable strategy to most in-house counsel. And, I would also say, be creative in getting to yes!

Q: What are some of your interests or hobbies? 

A: I have many interests, or I wouldn’t be able to call myself that Renaissance Man, would I? I would say on top of my list are coaching soccer and other sports for my boys and jamming with them as a jazz trio (still working on that one; I play saxophone, my oldest plays trumpet and my youngest is a drummer…it’s a start). I also enjoy skiing and other recreational sports to stay fit, and someday when my nest is empty, I’ll return to volunteer somewhere again like Habitat for Humanity.

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Assistant Editor-in-Chief Jessica Knox is a Partner in the Minneapolis office at Stinson LLP. She represents owners, general contractors, and subcontractors in litigation disputes. Jessica can be contacted at jessica.knox@stinson.com.