Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Looking at Construction Cases “De Novo”- An Apellate Perspective

Jay O'KeeffeFor this week’s Guest Post Friday here at Musings, we are happy to get appellate lawyer, Jay O’Keeffe‘s perspective on construction cases. Jay (@jayokeeffe on Twitter) practices business and appellate litigation with Gentry Locke Rakes & Moore in Roanoke, VA. He can reached at 509-983-9459 or at his blog, De Novo.

I was psyched when Chris offered me a shot at Guest Post Friday. At Gentry Locke, we’ve been fortunate to have the opportunity to work on a number of construction appeals over the past few years—some from cases that our own construction guys handled (holla, K. Brett Marston, Esq.), but increasingly from cases that we’ve seen for the first time on appeal. Coming in late in the game has given us a chance to think about construction cases from a different perspective. As such, here are an appellate lawyer’s thoughts on construction cases:

  1. Wow, that’s a lot of paper. Construction cases tend to be document intensive. That makes it particularly important to manage the record at trial, in order to ensure that all of the your evidence is available on appeal. Organization is therefore at a premium. Binders, checklists, and a second chair or paralegal at trial can prove invaluable.
  2. Specialized expertise adds value. I like to think of myself as a reasonably bright person. I can say without shame that I have no idea how to file a mechanic’s lien, where to find the latest AIA form documents, or how the VPPA works. Construction law is its own discipline, with its own weird little shibboleths and doctrinal idiosyncracies. It is very helpful to have a specialist on your team. And I’m not just saying that because I’m on a construction law blog. When we get a construction appeal, we always review it with one of our construction lawyers. With the benefit of hindsight and the ability to review the full record this way, we’ve identified several recent cases where the result at trial was primarily or exclusively the result of a lawyer’s lack of familiarity with construction law.
  3. Give damages their due. Here’s something else that’s easier seen in hindsight than in the heat of the moment: Defense lawyers sometimes focus on liability to the detriment of damages. That can be a problem on appeal if you wind up losing, because it is extremely difficult to get a damages award reversed or set aside when liability is clear or otherwise unassailable.
  4. Keep your options open. What looks at first blush to be a straightforward breach of contract case can wind up having layers and layers of complications. As you work your way through them, keep in mind that litigation is a process that begins before the complaint is filed and does not necessarily end at the close of trial. Take care to preserve key issues for appeal, in order to keep you options open.
  5. Mediation works. Chris nailed it in his post the other day. I’d just add this: Juries are unpredictable. Judges are unpredictable. Sometime, even justices can be unpredictable. There is a lot to be said for certainty and negotiated resolutions.

As always, please join the conversation with a comment below. Also, I encourage you to subscribe to keep up with this and other Guest Post Friday posts.

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15 Responses to Looking at Construction Cases “De Novo”- An Apellate Perspective

  1. The appellate phase is also a time to consider the advisability of settlement discussions, through mediation or otherwise. The cost and uncertrainty of an appeal, the length of time for the disposition, and the prospect of having to retry the case to unknown outcome, makes appellate mediation a wise choice. If damage valuations kept the parties from settlement in the pre-trial phase, parties to an appeal will also have the benefit of knowing how one jury valued the case, leaving some markers for the trail ahead.

  2. Jay,

    I agree with you on all points, especially #5 on juries, judges, and justices. My jury service a few months ago reaffirmed that. More on that in these posts:

    * http://bit.ly/14i7Fm

    *http://bit.ly/7aa1G6

    If you follow this case in the Chicago Law Blog, http://bit.ly/8EIK9x, you’ll see that that judge came to the opposite conclusion as the 12 jurors when she decided a breach of fiduciary duty counter-claim tried to the bench.

    — Josh
    .-= Joshua Glazov´s last blog post ..Fortifying Your Work-Out Against Future Bank Failure Presentation =-.

  3. I agree with #2 – one of my clients was put in a tail chasing run when trying to file suit against a certain property developer for leaking roofs and windows. The experience of dealing with a firm with inadequate construction law practice greatly demoralized her, until she was recommended another firm that specializes in it. This article will be invaluable for her – thank you.

  4. Thanks for the comment, John. I get the impression from our construction guys that this is an area of law that can certainly lend itself to tail chasing. Good luck with your suit.

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