10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators.
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| Live band music outside the renowned Orpheum Theater |
7. Don't lose the forest for the trees (or the
leaves). This was one of many tips conveyed by Jack Rice, a nationally
recognized and award winning criminal defense lawyer. The importance of
focusing on the big picture when presenting any case at trial and
avoiding information overload was a common theme throughout several of the
plenaries as well as the practicum. It is easy to become hyper-focused on the
nuances of the Project or the dispute but focusing too much on the weeds can
lose the judge or jury. We cannot underestimate the power of a strong theme.
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| No trip to NOLA would be complete without beignets... |
5. Don't be afraid to take a construction case to a jury trial. Construction attorneys are famously reticent to take cases to trial before a jury and, when permitted the option, will include a jury waiver in the contracts they draft. The desire to avoid a jury trial is based on the concern that jurors cannot be made to understand (or care) about the technical issues involved in the disputes that we litigate. As it turns out, that concern might be misplaced. Panelists Jason Rodger-da Cruz, Allen Miller, and Rick Fuentes opined that even the most complex case can be made easy to understand with proper theme development. The panelists also discussed the results they have seen in numerous mock trials before both simulated jury pools and simulated judges. While the mock judges tended to "split the baby," the mock jurors were more inclined to award full judgments where justified and demonstrated a strong desire to "get it right." If you do decide to take a case to a jury trial, be sure you get off on the right foot… according to these panelists, more than 50% of jurors make up their mind during opening statements.
4. A picture is worth a thousand words. Another common
theme across many of the sessions was the need to have a good demonstratives to
accompany your presentation of evidence at trial. The pressure to develop
visual demonstratives is higher than ever and will only continue to grow. That
said, Megan O'Leary demonstrated that it is easier than ever to create
effective trial graphics. PowerPoint has all the tools needed to put together a
professional looking presentation that, not all that long ago, would have
needed to be outsourced to a vendor at significant cost to the client.
3. Check with your client’s IT team before agreeing to
ESI protocols. Discovery protocols can easily reduce the burden of
discovery in document-heavy cases. However, attorneys need to confer with their
clients to ensure they do not agree to something that proves difficult or
time-consuming to do. Documents stored in a database frequently contain
links to other documents elsewhere in the same or another database. For
example, an email may contain a link to a draft change order; producing one
document (the email) will not produce the other, linked document (the draft
change order). If a party agrees to an ESI protocol requiring production of
linked documents but does not have a way to automatically produce linked
documents, parties may manually have to locate and produce the linked and
non-produced document.
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| Forum friends at the Friday afternoon crawfish boil |
2. It's important to track your damages early and often. Although
proving entitlement is the first hurdle a litigant must clear, proving damages
is equally vital. Michael Subak (Troutman), Andrea Gross (Bechtel), and Patrick
McGeehin (FTI Consulting) discussed the importance of tracking damages as they
are sustained. Not only will it help during the negotiations for a change order
or equitable adjustment, should the dispute evolve into litigation or arbitration,
the party will have a head start on preparing a summary of damages based on data
collected closer in time to the events giving rise to the dispute. It is more
difficult, and conversely, more expensive to evaluate damages months or years
after the claim arises.
1. Attorneys and consultants who invest in the Forum will get back more than they give. During the annual awards ceremony, the Forum honored Andy Ness of JAMS with the Cornerstone Award in recognition for his long-term service to the construction industry, the public, and the legal profession. As much as the Cornerstone Award is intended to honor those who give back to the Forum over the course of a career, Andy remarked that his contributions to the Forum were far eclipsed by the value the organization has, in turn, provided to him over the years. Whether through lessons in leadership to connections within the industry the Forum offers its members countless benefits. Andy is right in observing that the more you give to this valuable organization, the more you will get back in return.
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