Top 10 Take-Aways from the 2025 Annual Meeting in Austin

The ABA Forum on Construction Law convened last week in Austin, Texas for its Annual Meeting. This year's program was focused on general contractors entitled “Return of the Contractors – Transforming the Construction Landscape”. Kudos to Carmela Mastrianni, Dorsey Carson, Keith Bergeron, and Neale Johnson for putting together an insightful slate of plenaries and activities. While it would be impossible to sum up everything I learned, below are my top 10 take-aways.

10. Surety bonds are NOT insurance. The surety’s role on a project is to guarantee that the contractual obligations the principal has to the obligee will be fulfilled.  Ashley Robinson and Douglass Wynne provided insight into the surety’s perspective when a bond is implicated in a project. The three main surety bonds on construction projects are the bid bond (to guarantee the general contractor will enter into the underlying contract if it wins the bid); the performance bond (to guarantee performance of the contractor’s scope of work); and the payment bond (to guarantee payment to subcontractors and suppliers). For all of these bonds, the surety’s right to be reimbursed by the principal is fundamental to the surety-principal relationship.  If a surety has to make payments pursuant to bonds, the surety will pursue the principal (and often individuals at the principal who were required to sign indemnification agreements for the bond) for those funds. This relationship gives the surety leverage to encourage the principal to perform its obligations. Arguably one of the more challenging bonds is the performance bond as it puts the obligation of project completion on the surety if the principal defaults. Litigation often arises over issues such as whether proper notice was provided; whether the obligee properly placed the principal in default or properly terminated the principal; and whether the obligee performed all of its responsibilities under the contract. It is critical to review the surety bond and the underlying contract to determine whether all of the proper steps have been followed and provide the surety with sufficient notice of the default.  Similarly, under payment bonds, notice and timing are critical to a successful claim.

9. Utilizing a Construction Manager At Risk for project success. Construction manager at risk (CMAR) is a project delivery approach allowing the owner to hire and utilize a construction manager from design through close-out. Because the CMAR delivery method has increased in popularity, likely due to this approach’s ability to streamline design and construction, it is important to understand the benefits, risks, and obligations arising from this delivery method. John Patrick moderated this panel as Christopher Payne and Chantal Fink Mehill discussed the various issues to understand when using a CMAR delivery method. One critical consideration for the CMAR arises from the use of a guaranteed maximum price (GMP). Utilizing a CMAR allows a GMP to be established earlier in the process, shortening the project delivery time. However, when changes in design increase costs, the fight over what is “reasonably inferable” (and, therefore a CMAR risk) are rife.  One way to mitigate this risk is a contingency – though that must be carefully contracted as it comes with its own set of risks and disputes.  There can be significant advantages to a CMAR delivery method but it is important to understand the particular risks and considerations. 

8. Clearly define expectations and responsibilities for any delegated design. 

Many projects incorporate an element of delegated design, requiring contractors and subcontractors to engage in traditional design tasks. The best way to mitigate risk when incorporating elements of delegated design is to clearly define expectations and roles, according to panelists Liza Crabtree Akins and Anne Gorham, and moderator Steven Nudelman. Expectations addressing key issues like scope gap, schedules for drawing submittals or model updates, responsibilities for model maintenance, setting out exclusions, clarifying the need for a licensed professional designer, defining standard of care, and making sure the proper insurance is procured to help avoid or mitigate risk.

7. Project delivery method and contracts are key considerations in disputes between contractors and engineers. Panelists Jim Archibald and David Kent, and moderator Chris Anaya, spoke to various ways disputes between contractors and engineers can manifest and be pursued. Project method (e.g. design-build, public-private partnership, CMAR, integrated project delivery, design-bid-build), status of the project and dispute, temperature of the dispute, and owner perspective can all impact how to address the issues between a contractor and engineer and determine whether early resolution is possible or whether a more formal dispute resolution procedure is warranted. The contracts will set out critical considerations such as standard of care, limitations of liability, and insurance requirements that will define much of the dispute. And when dealing with a project delivery method where there is no contract between the engineer and contractor (such as design-bid-build), contractors have to utilize alternative theories of liability such as third-party beneficiary, negligent misrepresentation, professional negligence, or tortious interference with contract to attempt to bring a claim against the design professional directly.

6. Be transparent, be honest, surround yourself with good people, and take care of your family because they are the ones who support you. Luis Spinola of Azteca-Omega Group, LLC spoke about his journey starting in Mexico City and ending in the United States where he established his successful construction company in 1983. Mr. Spinola spoke of the attributes that helped him and his company persevere through challenges and achieve success. Setting expectations. Setting boundaries. Can do attitude. Get things done because only one thing counts – what you got done.  Teach.  Help others.  Always do the right thing.  Lessons to live by. 

5. Documentation is critical to support disruption claims. Disruption claims focus specifically on the efficiency of labor and resources. According to panelists George McLaughlin and Karen Deshon and moderator Carson Fisk, timely notice, detailed record-keeping, any mitigation actions, and potentially expert analysis is important in establishing damages in disruption claims.  Because of the challenges of establishing the calculation of lost labor productivity, it is important to follow the 3 “Rs” – Recognition, Recovery, Resolution.  Legal and expert assistance are often necessary due to the nature of disruption claims. 

4. Come on ride the train. The Division lunch panel program presented by Stacy Witbeck was focused on the construction of the McKalla Station constructed to provide access to the Austin FC stadium and provided insight into the challenges of constructing platforms on an active train line, as well as handling unforeseen conditions, coordinating work with other contractors, surviving the Austin-summer heat, and delivering a successful project in a timely, cost-efficient manner. Ultimately, the construction of the platforms encouraged growth in the area. 

3. Knowing the specifics of mechanic’s lien oddities is important to secure contractor’s rights. Mechanic’s liens are state-specific statue-based remedies for protecting the rights of contractors, subcontractors, and suppliers and it is critical to know the relevant laws and requirements for the state in which you must file the lien. Panelists Mark Grzymala and Amy Wolfshol took us one step further and shed light on some oddities in mechanic’s liens that require special attention. For example, contractors have different rights depending on whether the project is public or private – so what happens when it is both? For a public-private partnership project, it is necessary to determine who is the actual owner or tenant for the project and where the funds are coming from to determine what type of lien can be asserted on the project.

2. It is important to navigate conflicts of interest when an unexpected conflict arises mid-project. Panelists Samuel Gregory and Matthew Peng highlighted important considerations for attorneys through use of a hypothetical where the attorney represents the Owner of a construction project in the creation of development and contract documents and then, half way through the project, the Owner switches to a general contractor also represented by the attorney.  Through clever use of swag (YLD fanny packs to be precise), Samuel and Matthew engaged the audience in fact scenarios to show the necessary analysis attorneys must undertake to make sure they are not violating any ethical obligations by representing two parties in the same project.

1. Holy Cow, Batman. Friday evening saw many from the Forum going to the Congress Avenue Bridge to view the astounding site of hundreds of thousands of bats fly out from under the Congress Avenue Bridge to begin their nightly bug feast. A 1980 renovation transformed the Congress Avenue Bridge into an ideal bat cave. Decades later, Austin's bat numbers have swelled. Starting in late March through early fall, you can watch this incredible site: Same bat-time, same bat-channel (for those missing this reference, it was the catchphrase in the classic Batman TV series).

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Author Kendall E. Woods is a construction attorney in Chicago, Illinois where she has been practicing law since 2003. Kendall 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. Kendall can be contacted at kwoods@lauriebrennan.com.

Toolbox Talk Series: International Arbitration for the "Domestic" Construction Lawyer

As US-based construction lawyers know, arbitration is a frequently used method of dispute resolution. However, construction lawyers who practice primarily with projects and clients in the US may not be aware of the nuances that come with the use of arbitration on international projects. For this month's installment of the Toolbox Talk Series, Zachary Torres-Fowler and Manav Singhla discussed the similarities and differences between domestic arbitration and international arbitration. 

Zachary and Manav first demystified the nature of international arbitration; it is simply a means of dispute resolution just like domestic arbitration. They discussed the advantages of international arbitration, most notably the easier means of enforcement. Particularly where there are different legal systems (i.e., common law vs. civil law) enforcing a judgment from one legal system can be difficult where the prevailing party must go elsewhere (with a different legal system/tradition) to collect. 

In contrast, international arbitral awards generally are covered by the Convention on the Recognition and Enforcment of Foreign Arbitral Awards (also known as the New York Convention). The majority of jurisdictions across the world are parties to the Convention. The Convention permits an arbitration award entered in one jurisdiction to be enforced in another jurisdiction. In addition, the typical advantages familiar to domestic arbitration apply, such as privacy/confidentiality, cost efficiencies, and speed. Zach and Manav discussed that international clients with projects in the US may look to arbitration to avoid civil jury trials.  

Some differences from domestic arbitration are found in the mechanics of the arbitration proceedings. In the Statement of Claim/Defense (also known as Memorials) the parties include far more information that would be seen in a domestic arbitration. This includes items such as the substantive legal arguments, evidence, and expert materials. Discovery is far more limited than the already circumscribed discovery in domestic arbitration. Even the term "discovery" is avoided; rather parties will refer to document exchanges as "disclosure." 

Thank you Zachary and Manav for an insightful presentation. 

Meet the Forum's Neutrals: MATTHEW W. ARGUE

Company: Arbitration Mediation Conciliation Center (“AMCC”)

Office Location: San Diego, CA

Email: mattargue@onemediator.net

Website:  www.onemediator.net

Law School: University of Southern California Gould Law Center (1989)

Types of ADR services offered: Mediation, Arbitration, Discovery Referee

Affiliated ADR organizations: AMCC, AAA

Geographic area served: California, Nevada, Washington, Texas (and other jurisdictions via Zoom)

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Q: Describe the path you took to becoming an ADR neutral.

A: My path to mediation was heavily influenced by outside life events. I have been diagnosed with 3 different types of cancer over a 10-year period. After cancer #2, I decided continuing as a trial lawyer working 60+ hours per week was not healthy or wise. I took several years off to recover and rebuild my health, then my former law firm invited me to an annual firm dinner. While reconnecting with old friends, several former partners suggested I consider transitioning to a full-time mediator. A retired Federal District Court judge in San Diego who was doing high-level mediation allowed me to work as a mediation extern for 8 months to kick start my mediation practice. I also spent time observing Randy Wulff, Ross Hart, and other experienced mediators to gain mediation insights.

Q: What percentage of your current legal practice is spent on ADR work? 

A: I have been working as a full-time mediator since 2006. I have worked exclusively in construction mediation and arbitration for the past 18 years.

Q: What adversities did you have to overcome to succeed in your practice and get where you are today?

A: The third bout of cancer in 2009 was acute Lymphoid Leukemia (“ALL”). After establishing a full-time mediation practice, I had to take 18 months off to heal from a bone marrow transplant. So many other mediators and attorneys came to my aid to help/support during cancer recovery and to rebuild my mediation practice after cancer recovery. After surviving multiple bouts of cancer, the challenges of starting and restarting a construction mediation practice was much less daunting. I really enjoy being a mediator (far more than I enjoyed being a trial lawyer) so that helps, too! For me, being a mediator is a good fit for my personality as a peacemaker.    

Q: Describe your background and experience mediating construction cases.

A: I have over 30 years' experience in construction litigation, mediation and arbitration. I have mediated over 1,000 construction cases in the past 18 years. As a full-time neutral for construction mediations and arbitrations, I handle a wide variety of construction claims cases involving both public and private works, including airports, the Port District, hotels, high rise commercial developments, local government facilities, Federal facilities, schools, water district, universities, low-income housing, residential luxury high-rise developments, large-scale residential housing developments, and high-end luxury single-family homes.

Q: Do you have a reputation as a mediator?

A: The best compliment I received as a mediator is that “he likes to settle cases and does not give up.”

Q: Do you have any practices that you find make you particularly effective as a mediator?

A: I like to meet with counsel well in advance of mediation (usually several months before mediation) to improve my understanding of the issues and facilitate robust exchange of information. My goal is to ensure that all questions have been answered so the parties are ready to settle on the day of mediation. 

Q: When do you recommend parties in a dispute attempt mediation?

A: As early as possible. Claims get bigger and more complex the longer parties wait to engage the mediator. Mediators can expedite exchange of information and help focus the parties on the real issues in dispute and save time by avoiding time on peripheral issues. Also, mediators restore relationships between counsel prior to mediation to facilitate cooperation during the mediation. 

Q: What experience do you have arbitrating construction cases?

A: I am on the AAA Large Complex Construction Panel of Arbitrators. I have been appointed as an arbitrator in over 20 construction arbitration cases and have experience in a wide variety of construction matters including change order disputes, budget disputes, construction failures, delay and inefficiency claims, project schedules, acceleration, home office overhead, field office overhead, termination, defective construction (commercial and residential), condominium buildings, insurance coverage and bad faith claims. 

Q: What are some of your interests or hobbies?

A: I am an avid golfer. I played golf in college for San Diego State University and my greatest hope was to have my sons pick up golf. I paid for golf lessons for my two boys from the ages of 9 to 16 but neither son seemed to take to the sport. My youngest son, Liam, restarted playing and is now on his college golf team. My greatest dream to play golf with my son eventually came to pass.  Yeah!

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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.

How to Avoid Cold Feet on the Hot Seat – Five Considerations for Working with a Trial Technician (a “Hotseater”)

You are a powerful advocate for your client, which requires telling a compelling and persuasive story – that’s where an experienced trial technician (a “hotseater”) can help make your chronology and exhibits come to life. Not only can hotseaters free up your time to focus on strategy, rules and procedures, they can also provide input on crafting effective demonstratives and visuals to support your important perspectives. 

Here are 5 critical considerations when it comes to working with a hotseater to present your evidence.

1) Hire a Professional for their Experience and Fluidity

The primary job of a hotseater is to make sure your points are dynamically presented in the clearest detail without a hitch. That may sound like a straightforward task, but an inexperienced individual can quickly get overwhelmed. This isn’t a job for someone in your office who is “good with computers” or a paralegal who rarely works with presentation technology.

 

A professional trial technician understands the dynamics of a courtroom and is prepared to think on their feet when things go haywire. A hotseater is extremely familiar with presentation software and the necessary equipment so that you don’t have to take time to learn about all the logistics. A hotseater also understands the different data types for images, video, audio, etc. and the best ways to show them. 

If the information you’re showing in a trial or courtroom is significant, then it deserves to be properly presented by a hotseater that can make everything work seamlessly.

2) Scope Out the Stage

Don’t treat presentation technology as a last-minute afterthought – your case is too valuable, especially if you have video and audio evidence that you want to show. A hotseater will listen to what you plan to show and then make sure the equipment and setup all support your vision. This includes visiting the conference room or courtroom before the big day to locate power outlets and survey the layout – that will determine how many extension cords and cables are necessary. A hotseater also needs to know whether the location has a widescreen TV or a projector so they can be properly prepared.  

3) Equipment Factors

A hotseater will have a number of questions to help determine what equipment will be necessary. If you’re showing a video or playing audio, they’ll need to make sure they bring speakers or can hook up to the room audio if possible. And even though hotseaters are quite proficient with digital presentation tools, they also know every trial team needs to have a printer onsite for printing last-minute exhibits or documents. 

No hotseater would go into a presentation without having backups – both for equipment and evidence. While there is typically a primary presentation laptop, there should be at least one backup laptop that has a copy of all the same information. Hotseaters also often have multiple external hard drives to keep backup copies of documents and exhibits. 

Lastly, trial teams need to be able to communicate freely throughout the proceedings, but you would never do that on the trial laptop. Hotseaters will typically have a separate computer or device for communication purposes. 

4) Planning for Good Communication

Typically, by the time you bring in a hotseater for a litigation matter, you’re already familiar with many of the files and documents you’ve been using to build your case. You may refer to an important document as the “Smith letter,” but that name won’t mean much to the hotseater when you need it to be quickly pulled up on the screen. It is critical to establish with a hotseater exactly how you will reference documents and exhibits so as to avoid “dead air” or unnecessary confusion during the trial. 

Also, it is extremely beneficial to do a run-through of your presentation before the live event.  You don’t want to realize that a piece of evidence is missing from your presentation database during the trial/hearing, with all eyes on you and the hotseater.

5) Sharing Isn’t Always Caring (but sometimes you don’t have a choice)

If you take the time to engage a professional hotseater and everything goes smoothly, the opposing party may boldly ask if they can share your equipment for their exhibits as well. This typically causes more confusion than it’s worth, but in some scenarios a judge or court will require parties to share a hotseater and you have to act accordingly. 

Having a professional hotseater as part of your trial team ensures you can offload the stress of equipment, setup, and logistics and just focus on your arguments. Nextpoint has been supporting trials for over 20 years, and they are ready to answer any questions about the technology and support you need. Contact them today at info@nextpoint.com. 

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

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Brett Burney is the VP of eDiscovery Consulting at Nextpoint Law Group and a widely recognized authority on the complex ediscovery and case preparation/presentation issues facing litigators today. In addition to consulting with corporations and law firms on their data management and legal technology issues, Brett is a journalist, podcaster, speaker, and author. Brett can be reached at bburney@nextpointlawgroup.com.

Message from the Chair: Kelsey Funes (Volume VI)

Kelsey serving as a judge at the 2025 Trial Academy

This is my last post as the Chair of Division 1. I want to start by saying thank you for supporting me and this Division to plan and execute all our activities and content. The energy and generosity of our members is what makes Division 1 the best place to be in the Forum! I am so proud to have been a small part of it. I also want to thank the Steering Committee and every person who volunteered to plan a social event, a lunch presentation, a social media post, a Toolbox Talk, a blog post or a Practicum. We could not accomplish all that we do without the countless hours donated by our smart and creative volunteers. I am indebted to each of you.

Taking stock of all the people who volunteer their time to make Division 1 so prolific reminds me of the sage advice I got from Ava Abramowitz, a long time Forum member. In 2018, I had the good fortune to moderate a Diversity Lunch panel discussion featuring four women who had been early leaders in the Forum—Deborah Griffin, Deborah Ballati, Ava Abramowitz and Leslie King O’Neil. Among the many pearls of wisdom these ladies had to share, the one that has really stuck with me is Ava’s comment that the way to build relationships in the Forum is by doing the work. Man, was she right.

It has been an honor to do the work of D1 and I look forward to many more years of Forum work because with every project, I learn something new, and I meet someone new. I encourage each of you to raise your hands and roll up your sleeves because there is much work to be done in the divisions, the standing committees and the Forum at large. I can confidently tell you that raising my hand has helped me to get the most out of my Forum membership. My membership in the Forum has made me a better construction lawyer and helped me to build relationships that I treasure.

Dinner with a few Forum friends in Dallas, Texas

I also want to highlight the great things D1 has planned for the Annual Meeting in Austin, Texas. First, on Wednesday, April 23 we will be wrapping up our practicum series on discovery with the program: Mastering Expert Discovery. Our experienced practicum team will guide the participants through how and when to use experts in a construction case from the start of the dispute through discovery and trial. Next, grab your cowboy boots and join us on Thursday night, April 24, at Guero’s where we are joining with Divisions 4, 5, 6, 8 and 9 for a fajita dinner, leather branding bar, and live music. Finally, join us on Friday, April 25 for a joint lunch with Division 11 for a presentation on Multi-Party Mediation. Austin is sure to be a great time with our Forum friends!

In closing, I want to give my best wishes for a successful and productive term to the next D1 Chair, my friend Joe Imperiale. Division 1 is in excellent hands as I know that Joe and the rest of the Steering Committee will continue to make Division 1 the best place to learn about resolving construction disputes. If you have not volunteered before, I hope you will raise your hand to help Joe and the D1 team continue the fabulous D1 programming. I know that I will.

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Kelsey Kornick Funes is a partner in the Baton Rouge office of Phelps Dunbar. She represents owners, contractors, subcontractors, suppliers and design professionals in state and federal courts in Louisiana, as well as mediation and arbitration across the Gulf Coast region. She can be reached at kelsey.funes@phelps.com.

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.

How Not to Frustrate an Arbitrator: Common Mistakes Attorneys Should Avoid in Arbitration

A recent federal court ruling held that an arbitration award would be enforced under the facts of that case, regardless of whether the parties considered the award “good, bad or ugly.” See RSM Production Corp. v. Gaz du Cameroun, S.A., 117 F.4th 707, 714 (5th Cir. 2024). As explained below, we suggest that “good, bad or ugly” can describe other aspects of arbitration.

In our combined 20-plus years of experience as arbitrators, we have been surprised and frustrated when “good” construction advocates engage in counterproductive conduct that may accurately be described as bad or even ugly. Optimistically, we offer the following suggestions to improve counsel’s performance in arbitration. 

Mind your ABCs. Always be credible.

An arbitrator’s ability to rule on an issue depends, in part, on the credibility of the parties' communication of evidence and law. From initial filings to the last argument, attorneys must maintain consistent credibility. 

Most obviously, counsel should not overstate or misstate accusations of an opponent’s misconduct, promises of what they intend to prove, the applicable law or the content of the record. Such inaccuracy, especially if repeated, will be obvious to the tribunal or exposed by an opponent and erode that party’s credibility on those crucial and frequent issues where the tribunal needs to make close calls.

Less obvious, but equally important, is that counsel should avoid making a bad impression on the tribunal; no one, including arbitrators, appreciates someone acting like a jerk.

The golden rule of doing unto others as you would have them do to you is honored in cultures across the globe, and for good reason. So, a tribunal wants counsel to be courteous and becomes annoyed with and doubtful of the motivations of those who engage in sharp practices. While attorneys must not allow themselves to be bullied, absent undue prejudice, they should graciously agree to cooperate, give accommodations and never engage in vituperation or personal attacks on anyone—especially witnesses—whether or not they are justified.

There is no chance such an attorney’s client will achieve a more advantageous result in the long run from such unsavory tactics. On the other hand, a tribunal is more likely to indulge a party’s need for an unforeseen accommodation when that party has treated its opponent graciously.

Be effective and economical in resolving pre-hearing and evidentiary disputes.

Too often, the promised benefits of arbitration are undermined by counsel’s needless motion practice. Construction disputes can be expensive to resolve; consequently, clients include arbitration clauses in their contracts to provide for a dispute resolution process that is more economical and efficient than litigation. Yet many attorneys engage in needless discovery disputes, doomed dispositive motions and unnecessary evidentiary wrangling, mistakenly thinking that they are advancing their client’s interests. They are not, because the benefits of such behavior are seldom worth the costs in time, expense and negative impact on the tribunal’s opinion of the advocate’s tactics.

Few motions are specifically allowed by most organizational arbitration rules. Thus, at the preliminary conference with the tribunal, ask whether emails, rather than formal motions, are the proper way to bring pre-hearing disputes to their attention. Then, before raising any procedural or discovery disputes, the parties should truly attempt to resolve their disagreements; a simple “check the box” representation of conferral is easily detected by the tribunal and reflects badly on the party seeking a ruling.

Counsel should be equally cautious when raising evidentiary disputes. Given arbitration’s relaxed evidentiary rules and a tribunal’s reasonable reluctance to preclude witnesses or categories of evidence, counsel might better tailor evidentiary objections in a common sense, targeted manner. For example, instead of asking to exclude an expert witness, counsel might seek to limit the scope of the expert’s testimony.

Similarly, counsel should hesitate before objecting to evidence on the grounds that its prejudicial effect outweighs its probative value. A tribunal of seasoned arbitrators will be able to accept “hot” evidence and weigh the extent to which any of it is probative. Arguments suggesting that the arbitrators will be confused or led astray by such evidence rarely have purchase and may appear presumptuous.

This is not a jury trial; find out what the arbitrators want, and plan hearing strategy accordingly.

It is of utmost importance for counsel to find out how the tribunal wants the parties to present their evidence, and to adhere to these preferences, because the tribunal knows what it needs for its deliberations. Too often, counsel act as they would in trial, even to the point of failing to treat seriously the tribunal’s directions on how to present their arguments, exhibits and other evidence.

In addition to following the preferences of the tribunal, because there is no jury and no judge constrained by litigation rules, there are other ways in which counsel should present their evidence that should be dramatically different than if they were in trial. 

A properly prepared tribunal will have read the parties’ pre-hearing submissions and have a handle on the basics. Therefore, counsel should explore with other counsel and the tribunal in advance of the hearing the possibility of stipulating to certain testimony, or at least quickly leading witnesses along in proving the preliminary aspects of their proof. For issues that are not in dispute, the parties may simply refer the tribunal to the appropriate evidence in the hearing binder rather than putting on one “ministerial” witness after another. Experienced arbitrators do not need “the show” of multiple background witnesses to understand a party’s case.

However, for contested issues, counsel should not spare or fail to use knowledgeable fact witnesses; they are indispensable to the credibility and persuasiveness of each party’s case.

Although there is no jury, arbitrators are human and need counsel to lead them through the evidence on issues of contested fact so that the arbitrators understand each side’s proof and are comfortable deciding whether they have met whatever burden of proof they may have to provide on their respective claims or affirmative defenses. Arbitrators get presented with huge swaths of information during a hearing. Crisp, focused examinations and cross-examinations can carry the day. 

Additionally, too many attorneys develop great materials prior to the arbitration that are not used effectively during the hearing. Photos and demonstrative evidence such as chronologies, graphs, charts and reconstructions can pack as much of a punch with arbitrators as with a jury. But counsel err when they simply put such exhibits in evidence via a thumb drive or notebook of documents, or do no more than cite them in an expert’s report or post-hearing brief. Counsel need to explain the relevance and importance of key exhibits with knowledgeable fact witnesses in real time. While Hollywood-type antics are inappropriate in front of a tribunal, counsel never should forget to keep the tribunal engaged. Arbitrators always welcome hearing from witnesses who know what they are talking about via careful, non-leading questioning on the core issues in dispute. 

Expert testimony is another area of proof where counsel are too often ineffective. They would be wise to seek the direction of the tribunal on how and when experts should testify. Counsel need not lead expert witnesses through a mind-numbing exposition of their education and experience or the foundational assumptions for their opinions. With agreement from opposing counsel and the tribunal, experts’ CVs and reports should be placed in evidence, with the focus of the experts’ oral testimony on the factual basis for and expert analysis of the issues that the tribunal and the parties know are relevant and in controversy.

The tribunal also should be asked whether they would prefer that experts on the same issue testify back-to-back at the end of the hearing after all factual evidence relevant to the experts’ opinions is in the record. Also, the tribunal may prefer that such experts meet, confer and then prepare and provide the tribunal and parties with a joint report in advance of the hearing, highlighting their areas of agreement and disagreement and identifying the evidentiary bases for their disagreement.

Provide sufficient proof and explanation of damages claims and defenses.

We agree with the often-stated observations that “the weakest part of most hearing presentations in a complex construction case concerns damages” and that experienced construction counsel repeatedly “fall flat” in proving or refuting the cause and effect and quantum of the claimed losses.[1]

Counsel must remember that it is not enough to establish or raise concerns about issues of liability; they must also prove—or defend against—causation and quantum of damages. Arbitrators are unlikely to award damages if they cannot understand how or in what amount those damages were caused by the opposing party.

Consequently, we cannot stress enough how crucial it is that the tribunal be provided proof of a party’s damages arguments via evidence that is factually based on live testimony and documents that clearly support their damages claims and defenses.

In meeting these important burdens of proof, parties should not default to demonstrative PowerPoints or thick exhibit notebooks containing documents that are neither substantiated by direct testimony of fact witnesses nor tested by cross-examination or rebuttal testimony. Parties also should understand that often the summary testimony of hired experts alone will not be sufficient to carry their burden of proof on damages. The tribunal may want to question the fact witnesses and experts about their damages analyses and calculations, and they cannot do so if they do not have knowledgeable and competent witnesses to question.

Reserve enough time for the hearing.

Often parties realize, too late, that they have run out of hearing time to put on their cases effectively, especially in large, complicated disputes. When reserving hearing time months in advance of when they actually know what their proof and rebuttal evidence will be, parties should consider reserving a reasonable amount of time in addition to what they think they will need. Factual, legal and procedural issues often arise during a hearing that cause delays, and neither counsel nor the arbitrators should be rushed in addressing legal issues, examining the witnesses and reviewing exhibits as they are offered. Parties should not default into thinking they can make up for missing hearing time by filling in evidentiary gaps in post-hearing briefs.

Good is better.

In summary, while we cannot guarantee that a given arbitration will be good, we hope that this guidance will help keep an outcome from being bad or ugly.

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This article was first published by JAMS on March 10, 2025. It has been reprinted here, courtesy of JAMS. 

Co-Author Patricia H. Thompson is a full-time arbitrator and mediator at JAMS, concentrating her practice in construction and surety claims, employment discrimination, wage and non-compete disputes, fidelity and business insurance coverage analysis, and other complex commercial disputes. Patricia is based out of Miami, Florida.

Co-Author, Hon. Nancy Holtz (Ret.) is also a full-time mediator, arbitrator, neutral evaluator, and hearing officer at JAMS. Prior to joining JAMS, Nancy spent 15 years on the Massachusetts Superior Court where she presided over a wide range of complex cases, including construction litigation disputes. Nancy is based out of Boston, Massachusetts.

[1] Construction Arbitration – The Advocates Practical Guide, 184 (A. Ness and J Foust, Eds, ABA 2023).

Toolbox Talk Series: Direct Versus Consequential Damages--Is There a Clear Demarcation?

In Hadley v Baxendale, 9 Ex. 341 [1854], of 1L Contracts lore, the Court of Exchequer set out the dichotomy of direct damages and consequential (or indirect) damages. In the 170 years that have followed, lawyers on both sides of the Atlantic have sought to parse out what are direct damages and what are consequential damages. In the March 20, 2025 installment of the Toolbox Talk Series, Gaetano P. Piccirilli and C. Quincy Conrad discussed this frequently disputed and convoluted classification of damages as direct or consequential in construction disputes.

Gaetano and Quincy noted the traditional explanations of direct and consequential damages almost invariably use those terms without explaining how the differ. For example, direct damages are frequently described as "necessary and usual" flowing from the breach. Consequential damages are described as "naturally, but not necessarily" flowing from the breach. Gaetano and Quincy recommend avoiding the use of whether the damages are "foreseeable." 

Instead, they offer a more streamlined and intuitive approach to classifying damages:

Direct: Relating to the value of the breaching party's performance.

Consequential: Collateral to the value of the breaching party's performance. 

When using the above framework, categorizing damages becomes easier to work through. For example, a contractor's delay causes a building not being ready for leasing may cause the owner to lose rental income. Because rental income is not part of the contractor's performance, the lost income are consequential damages. Conversely, if an owner terminates the contractor because of the unacceptable delays, the increased costs of performance to hire a replacement contractor directly relate to the original contractor's performance. Accordingly, those damages would be direct damages. These two examples also illustrate why using "foreseeability" as a dividing line can be problematic; lost income from construction delays is foreseeable, but rental income is not the performance the Owner expects from a contractor. 

The distinction between direct and consequential damages often is critical because industry contracts frequently contain waivers of consequential damages. As a direct damage, an owner could recover the increased costs of performance. However, the lost rental income, as a consequential damage could be non-recoverable as a consequential damage. Accordingly, parties negotiating a construction contract should pay close attention in defining consequential damages and any exceptions to a waiver of consequential damages. 

Thanks to Gaetano and Quincy for their insights and discussion on the classification of damages.

Subcontractor Default Insurance (“SDI”): What Is It?

While general contractors are planning for successful completion of their projects, they unfortunately must also account for risks associated with subcontractor defaults. General contractors have to understand their options for minimizing losses arising from subcontractor defaults and must take proper steps to protect their interests and ensure project completion. General contractors primarily minimize loss through contracts, bonding, and insurance. While there are many ways to manage and protect against the risk of loss from subcontractors, Subcontractor Default Insurance (“SDI”) is one product that can help.

A. Subcontractor Bonds

At the outset, it is important to note that SDI is not a bond. A subcontractor performance bond is a surety bond required by general contractors for subcontractors to guarantee their performance on a project. It is a three-party relationship between the principal, the surety, and the obligee. The principal (the subcontractor) purchases a bond for a project. The surety provides the bond and assures that the principal will perform. The obligee (the general contractor) is the party protected by the bond. If the subcontractor/principal defaults, the surety will generally step in and complete the work that the subcontractor failed to perform.  Unlike insurance, a bond requires a subcontractor that obtains a bond to execute an indemnity agreement with the surety guaranteeing that any losses or expenses incurred by the surety will be reimbursed by the subcontractor. 

B. Subcontractor Default Insurance

Unlike a bond, an SDI policy is an insurance policy that generally provides insurance coverage for economic loss incurred by a general contractor due to a subcontractor’s default.  In general, it is not for smaller general contractors as it usually only sold to larger general contractors with annual sales in excess of $50 million. General contractors usually purchase SDI as an alternative to surety bonds and use SDI to assist in managing its subcontractors by providing financial protection against the risk of subcontractor default.

It is used to protect general contractors from subcontractors that default on subcontracts because they cannot finish a project, they go out of business, or their work is defective and must be redone. SDI is first party insurance whereby the general contractor is the insured. And unlike bonds, SDI is a two party agreement between the general contractor and the insurer. Under an SDI policy, the insurance company pays the general contractor for the losses incurred due to the subcontractor default.

SDI does not provide “first dollar” coverage for such losses.  Instead, it is a type of self-insurance with coverage for catastrophic losses. SDI policy terms may be negotiated by larger general contractors and therefore, the coverages may vary among the different companies writing such policies. SDI policy deductibles and limits also vary based on the general contractor and what amount of risk the general contractor is willing to take. While SDI deductibles vary, it is not uncommon for SDI deductibles to range from $350,000 to $2 million. In addition, most SDI policies require co-pays where the insurer and the general contractor may share up to the first $2 million in costs before the insurer will fully cover the GC’s costs.  With these co-pays and deductibles, it is clear that SDI is not for small projects but only meant for larger projects.

Insurers that issue SDI policies also require general contractors to vet their subcontractors to ensure that they can complete their scopes of work and are financially sound. Often general contractors will be required to vet their subcontractors through a prequalification process to ensure the subcontractors’ ability to perform. But unlike bonds, the insurer does not prequalify the subcontractors. Rather, the general contractor is in control of the prequalification process. However, the SDI insurer may prequalify the general contractor’s prequalification process.  During the prequalification process, general contractors should evaluate several factors including a subcontractor’s experience/project history, financial well-being, safety record, prior working relationships, and management team. Regardless of what factors are analyzed, a general contractor will have to prequalify its subcontractors as part of the process of obtaining an SDI policy.

SDI policies may run for a term of up to two years and generally cover all un-bonded subcontractors on a project. However, depending on the terms of the SDI policy, certain subcontractors may not be covered or there may be specific aggregate limits for certain subcontractors. An SDI policy will typically cover the expenses incurred by a general contractor in completing the defaulting subcontractor’s scope of work, the costs of correcting defective work, related professional costs, some related indirect costs such as acceleration costs, delay damages, and extended overhead costs incurred by the general contractor. In general, coverage does not end at the termination of the SDI policy period as the SDI policy generally applies through the earlier of the statute of repose or ten years.

The claims process under an SDI policy is much different than traditional surety bond claims. With surety bonds, after a claim is submitted, the surety investigates the claim and determines whether there is a subcontractor default. This is often very time consuming and can be expensive for a general contractor.  However, when dealing with a claim under an SDI policy, the general contractor can remain in control of a project and does not have to wait for an investigation as a default is declared by the general contractor. An SDI policy is triggered by a subcontractor default pursuant to the terms of the subcontract.  Often, the general contractor will have to prove a default when asserting a claim under the SDI policy. And the general contractor will have to provide the subcontractor with a notice of default pursuant to the terms of the subcontract.

One potential benefit of an SDI policy is that the general contractor can generally start remedying the default pursuant to the terms of the subcontract. However, the general contractor is not required to terminate the subcontractor to trigger coverage. If there is a subcontractor default, then the SDI insurer is obligated to indemnify the general contractor for losses within a set time period from the date the general contractor submits its proof of loss.  However, if a default is later determined to be improper, the general contractor may be obligated to reimburse the insurer for costs paid.

While SDI insurance has its advantages, the high deductibles and required copayments can be substantial and expose the general contractor to financial loss. In addition, a general contractor purchasing SDI will have an increased responsibility from having to vet its subcontractor through a prequalification process and having to manage its subcontractors so that it will be able to accurately declare a subcontractor default.

SDI clearly has its benefits, but it may not be the right product for every general contractor.  Regardless of whether a general contractor chooses to use bonds, SDI, or other solutions to assist in minimizing risks associated with subcontractors, general contractors must protect themselves from the potential loss associated with subcontractor defaults.