Resolving Construction Disputes: Is A Jury Trial Right For You?

I am very happy to guest muse about construction law today, but first I want to muse a bit about the original Muses of Greek mythology, and their Dad Zeus. Why? Because some times the history of a construction project reads like a Greek tragedy.

You might remember that the Muses were goddesses of the arts and sciences, including poetry and history, geometry and astronomy, tragedy and comedy. Their Dad was a pretty powerful guy: he could control the weather and give orders to any mortal or god, except The Fates, the goddesses of destiny who controlled the life and destiny of everyone.

Construction Muses (and their male counterparts) of our day are the gifted ones who design, finance, supply, and build our edifices of granite, steel and stone. Each project has Zeus-like figures who are effective leaders and very good at giving orders but, unfortunately for schedulers and unlike Zeus, can not control the weather.

But when misfortune strikes, turning construction professionals into adversaries, it is The Fates who control the futures and fortunes of the combatants.  Who are The Fates in the construction world? Jurors, ordinary men and women deemed by law as The Great Deciders of the fates of all who enter the temples of justice we call courthouses.

Since jurors wield such great power, jury dynamics should be carefully considered by anyone wanting a jury trial.  This is especially true for members of the construction industry because delay claims, defect cases, and most other types of construction disputes take longer, involve more witnesses, require more exhibits, and are generally more complex than the average case pending in civil courts.

This is not to suggest that jury trials should be avoided at all costs.  If your opponent’s unrealistic view of the  risks of trial results in low-ball negotiation tactics or a scorched earth litigation strategy, you may decide to accept the risks and limitations of a jury trial because you  feel you have no other choice. I have been there and done that. If you go this route, there are Three Myths about Juries you should know about:

Myth No. 1: Justice is served when a dispute is submitted to a “jury of one’s peers”.

The truth is the U.S. Constitution does not give you a right to a trial by a jury of your peers. The Seventh Amendment simply preserves the right to trial by jury in civil cases “and no fact tried by a jury, shall otherwise be reexamined in any court of the United States, than according to the rules of common law.” Therefore, while jurors are the judges of the facts in a trial, they need not be your peers. A “Peer” is defined as “One’s Equal,” and opposing counsel will make sure that none of your peers in the construction industry are on the jury.

Some trial consultants believe that a case is won or lost during the jury selection process. That is when lawyers ask prospective jurors, who are under oath, various questions about their backgrounds, attitudes, and experiences, ostensibly for the purpose of ensuring the jurors can be impartial, but in reality they are trying to stack the deck in their favor. This is part of our adversarial system of justice, and state laws give lawyers the opportunity to ask the judge to dismiss any jurors who may have actual or perceived biases; the lawyers are also given peremptory challenges to kick a number of people off the jury for any reason at all.

As a result of the jury selection process, you can be sure that the members of your jury will have little, if any, experience in the construction industry. They will not be your peers. If the trial concerns an architect’s alleged design errors, you can be sure that opposing counsel will not let an architect get on the jury. Likewise, it is unlikely that a spouse of a contractor would be selected when the trial is about construction defects

Myth No. 2: Jury verdicts are based solely on the evidence and the law.

The truth is jurors bring their experiences, personalities, and perceptions into the courtroom and these things shape the views of what they are seeing and sharpen the tones of what they are hearing.  As a result, it is very difficult to know how the unique facts of your case will be received by the jury. The following answers to post-trial surveys conducted by Los Angeles County Superior Court Judge Jacqueline Connor are enlightening (and frightening):

“I disliked that the whiny plaintiff thought his problem was worth the court’s and 14 jurors’ time.”

“Too many attorneys take too many cases to court. This was exactly one of those that should never have been brought.

“The defense attorney was popping TUMS. What’s wrong?”

“She was good, logical, kind of dull, though. And needs to update her wardrobe (button hanging off.) Stuff like that is distracting.”

“Skilled and articulate but his hair was a little long to be compatible with his high quality dress without suggesting shiftiness.”

Myth No. 3: The evidence so clearly supports my position, the jury will be compelled to render a verdict in my favor.

The truth is you do not know what evidence the jury will hear. That will depend on the judge and how he or she applies the rules of evidence, and no two judges are exactly alike when it comes to their rulings on the evidence. Throughout the trial, the judge will rule on dozens of objections by your opponent regarding hearsay, relevance, and admissibility. These snap decisions will have long-term implications for your case.

Prior to trial the judge will likely rule on several motions in limine, in which the parties will try to exclude whole segments of your case and prevent any reference to them in front of the jury.  Oftentimes the basis for such motions is that the information is more prejudicial than it is probative. In other words, that dynamite piece of information that you know will blow away the jury may never be heard because it may move the jury to an irrational decision based on passion. We called that kind of evidence “zingers” in my trial attorney days. Unfortunately, judges rarely let the zingers out of the bag.

You might think that even if the jury does not hear or understand all the evidence, they certainly will be convinced by the opinions of your expert witnesses.  Most jury instructions regarding expert witnesses say something like this:

You do not have to accept an expert’s opinion. As with any other witness, it is up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert’s testimony….”

(CACI Jury Instruction No. 219.)

Of course, the other side will offer the testimony of equally impressive experts to contradict the opinions of your expert witnesses.  The jury then has to decide which set of experts to believe, which can be a fifty-fifty proposition.

Conclusion

These myths reflect a sobering fact: after closing argument, you cede responsibility for the outcome of your case to strangers, most of who, if not all, will have no background in construction. Before giving up that control, be sure you have carefully considered how well your case will be perceived by the jury. Try to look at your case objectively, not from your perspective as a seasoned construction professional, but through the eyes of people who have no experience in the construction industry.

We have the best legal system in the world and people who serve on juries perform an extremely important civic duty; it’s just that trials are not the most effective way to resolve construction disputes. Chris Hill has mused plenty about alternative dispute resolution procedures that are better suited for the resolution of construction disputes.  In mediation, for example, you retain control over the outcome.  Arbitration is another alternative to trial, but you are still giving an arbitrator control over your fate. You can, however, mitigate this by customizing the dispute resolution provisions in your contracts to fashion an arbitration proceeding to your liking.

I can’t resist the urge to end this guest post musing with a quote from Greek mythology (think jurors):

“It was built against the will of the immortal gods, and so it did not last long.”(Homer, The Iliad.)

Ron and I encourage your comments below, so let’s get some discussion going. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.