For this week’s Guest Post Friday, Musings is lucky enough to have my pal Chris Cheatham of Green Building Law Update and his newly launched Construction Claims Playbook join us for a second time. Chris’ (@chrischeatham) law practice provides claims guidance to contractors. His mission is to deliver cost-effective counsel to the construction industry. Chris has worked at some of the largest law firms in the country for some of the biggest companies in the world and he will apply this experience to your next construction legal issue.
When I was a child, my parents and I traveled every summer to a little town called Bolivar, Missouri, where my mom grew up. I wrote a story about why I loved the town — the fishing, the doughnut shop, my grandparents. The article was published on the front page of the local newspaper. I have been hooked on storytelling ever since.
Thankfully, as a construction attorney, I get the opportunity to tell construction stories. While there are important elements and mechancs that go into any legal document, storytelling is the heart of a construction claim. If your narrative — or story — does not convince your reader to take your side, it’s unlikely that your claim will succeed no matter how sound your arguments.
But how exactly do you tell the story of a construction project?
Nick Morgan’s recent article about the key elements of storytelling articulates many aspects that are difficult to teach, but essential, to a persuasive story. The elements can be extrapolated to the writing of a construction narrative:
1. “Beware the power of the back story.”
Morgan makes the point that if you understand your audience’s back story, then you can do a much better job persuading. Before a writer can draft a construction claim, he absolutely must understand the relationship between the contractor and project owner, or the contractor and the subcontractor. This relationship is the back story of the claim and it will dictate the key facts that are included in the narrative. For example, if the contractor must maintain an ongoing business relationship with the owner, then you draft a more passive claim based on the parties’ long-standing relationship.
2. “Who’s your audience?”
Morgan argues that you have to know your audience better than it knows itself and he’s right. Your audience will have very particular feelings about receiving a construction claim. Does the owner deal with claims often? Or will the owner be extra sensitive to the filing of a claim? How often does the owner or contractor litigate claims? And most importantly, who is the individual that will review your claim? How does this individual feel about your claim or your company? If you don’t understand these questions, your narrative may miss the mark.
3. “Who’s the hero of your story?”
When writing a construction claim, the obvious answer is that the contractor should be the hero of the story. Most writers will write a claim so that the contractor appears to be the good guy that deserves compensation.
However, a construction narrative should remain as objective as possible. If you cast the contractor as the hero, your reader may be turned off and unpersuaded.
Instead, Morgan explains that you should cast the reader — your audience — as the hero:
“Most powerful, often, is to put the audience in the role. That way, you make it easy for your listeners to take over the story and make it their own.”
Your narrative should convince your reader that an injustice has occurred that needs to be rectified. Your reader can then become the hero and save the day by supporting your claim.
4. “Mine everywhere for sources of story.”
Again, Morgan has some helpful advice: “Don’t limit yourself. Be prepared to find stories everywhere.”
When I interview project staff about claims, I make sure to note rumors that floated around the project. Often, there is some truth to these rumors that can be used to support a claim. For example, I worked on one claim that arose because resources were shifted away from the project. The project staff had heard rumors that the U.S. Government had made a deal with Russia that resulted in the shift of resources. When I looked into the rumor, it turned out to be true, and it added a supporting plot line to our claim.
5. “When you’re telling the story, get into the right frame of mind.”
It is very difficult to write a construction claim if you are not in the right frame of mind. On one extreme, some writers forget to weave in emotion.
I have a different problem. I often get too emotionally involved in construction claims. After speaking with employees, and reading through project documentation, I can’t believe the contractor has not been compensated for the claim. if you are like me, it is important to take a step back and write from a more neutral point of view. Often times, this means I have to revise a claim to remove overly-emotional language.
6. “Props can help tell a powerful story; they can also kill one.”
In a construction claim, props are the non-narrative aspects: the legal arguments, schedules, damages calculations and footnotes. These props are secondary in importance to your narrative. It is easy to overdo these props, ultimately drowning out the persuasive narrative.
The most effective construction claims persuade the audience through the narrative. No matter who writes your claims, you must ensure that the writer focuses ample time on developing a persuasive story grounded in fact. Only after completing the narrative can you then buttress your claim with supporting legal and technical opinions.