Phases of Construction Litigation
Lawsuits are becoming more common in the construction industry as businesses look to exploit incomplete contract language or simply feel that the other party engaged in the deal has not held up their end of the contract. While a good construction attorney will do whatever they can to keep their client out of a lawsuit, certain cases must go through traditional litigation to be resolved. In situations where your case must go to traditional court, hiring an experienced and knowledgeable construction litigation attorney is key to your success. With over 20 years of experience representing construction focused companies throughout DC, Maryland, and Virginia, Antonoplos & Associate’s group of construction litigation attorneys can assist you throughout any part of your lawsuit process.
Below is an outline of the common steps of a construction litigation case—case investigations, pleadings, discovery, pre-trial, trial, settlement/verdict, and appeal—with brief descriptions of each step. Additionally, alternative dispute resolution (ADR) is discussed as many commercial construction contracts require that if a dispute does occur, the parties must go through a form of alternative dispute resolution before moving to formal court proceedings.
Phase 1: Case Investigations
Case investigation is the process by which your construction litigation attorney collects evidence. The reason why this is the first phase of any lawsuit—construction-related or not—is because you need to ensure that there is enough evidence to move forward with the case. If your construction litigation attorney does not begin your case with this step or they collect evidence on your behalf poorly, you could be wasting thousands of dollars on court and attorney fees pursuing a case that has no chance of success. At Antonoplos & Associates, our construction litigation attorneys will locate witnesses, take witness testimony, collect documents, and analyze the events leading up to the dispute during the case investigation phase of your lawsuit. Each portion of this phase is geared towards ensuring that you have an airtight lawsuit. Thus, when you actually get into court, the process is quick and easy.
Phase 2: Pleadings
In order to formally initiate the lawsuit, your construction litigation attorney will create a summons and complaint. Once drafted, these documents will be served to the defendant. If you are the one being served the summons and complaint, you should immediately find a reputable construction litigation attorney. Once you hire an attorney, they have the ability to investigate the allegations brought against you. In addition, they can create a response that will be sent back to the plaintiff’s attorney.
Phase 3: Discovery
Discovery refers to the process by which both parties involved in a lawsuit share relevant information on the case. Information typically exchanged during discovery includes contracts, paperwork, and blueprints. However, other material from the construction site that may be relevant to the case can also be exchanged. Furthermore, your construction litigation attorney will collect this evidence through requests for production, requests for admission, depositions, and interrogatories. These tactics are usually sufficient to get the materials necessary. However, in certain circumstances, your attorney may ask the judge for a motion to compel or a protective order.
Finally, if during or after discovery your construction litigation attorney feels that factual evidence makes the case so one-sided—in general, or on one specific issue—that it would be pointless to proceed to trial, they can ask the judge for a summary judgment motion. If one party files this motion, the judge takes the undisputed facts and applies applicable law to them. The judge then must decide if the issue can be settled without having to go to court.
Phase 4: Pre-Trial
In certain cases, you can reach summary judgment after discovery. However, if this is not true in your situation, your lawsuit will move to pre-trial proceedings. In this phase of the lawsuit, your construction litigation attorney begins preparing for trial by providing consultation, retaining expert witnesses, attending pre-trial conferences, and developing a trial strategy based on the facts and evidence gathered from previous phases of the lawsuit.
Phase 5: Trial
Once the trial begins, both construction litigation attorneys give their opening statements. After this, they lay out the reasons for the strengths of their cases and weaknesses of their opponent’s case. As with the entire trial process, the construction litigation attorney uses evidence as grounds for making these claims. In addition to the opening statement, your construction litigation attorney will prepare witnesses for testimony, develop persuasive arguments through the presentation of testimony and evidence, present opening and closing statements, draft and argue trial motions, and examine and cross-examine witnesses. As stated above, the goal of each of these actions is to show the judge or jury the strength of your case and the weaknesses of your opponent’s case.
Phase 6: Settlement/ Verdict
Settlement can occur at any point of the lawsuit process. If your case does reach settlement, both parties will conduct negotiations, alternative dispute resolution methods and settlement conferences. Common materials used during a settlement process include settlement brochures, agreements, and releases. However, if your case does not settle, the verdict on the case will be given by the judge or jury.
Phase 7: Appeal
No matter the side of the lawsuit you’re on, if you lose your case, your attorney can appeal the verdict. If this occurs, your construction litigation attorney will draft post-trials motions, identify what issues to focus on during appeal, create strategies for how to argue your case during the appeal trial, find additional evidence to support your case, draft new documents for the court, and finally go through the trial process again.
Alternative Dispute Resolution
Whether your construction contract required you to go through a form of alternative dispute resolution before formal litigation or you agreed to move your case to ADR during the progression of your court case, a construction litigation attorney is just as important to your success in ADR as they are in formal litigation. The two most common forms of ADR are mediation and arbitration.
In mediation, instead of a judge ruling on the case, a neutral third party called the mediator resides. This mediation hears the case and works to facilitate discussion and negotiation between the parties. The goal of this form of ADR is to help both parties reach a mutually acceptable compromise regarding their dispute. Another difference between mediation and normal court hearings or arbitration is that this form of ADR is not legally binding.
Arbitration is more similar to a normal court hearing. The reason for this is that you can have multiple individuals listen to and rule on your case. Furthermore, once both parties give their arguments, the arbiter(s) give their reasoning. After they state why they are siding with one party, they will state what award the winning party will receive. Additionally, the arbitration process can be binding or non-binding, and appeals are available only in rare cases. Even if the ruling from your ADR hearing is non-binding, it is important that you have an experienced attorney. Your construction litigation attorney will help guide you through the process and assist with any legal issues that may occur.
The litigation or alternative dispute resolution process is different for each case. However, understanding how each step of litigation works will help familiarize you with the process. Additionally, this knowledge allows you to evaluate your construction litigation attorney and know if they are not properly representing you. With over 20 years of experience, Antonoplos & Associates Washington DC construction litigation attorneys can help construction company owners, contractors, subcontractors, material suppliers, architects, and designers with a wide range of services before, during, and after a construction project. No matter your situation, let our group of construction litigation attorneys guide you through any legal issues you may experience.
Contact our DC Law Office for More Information
Finally, for more information on the phases of construction litigation, contact us at 202-803-5676. You can also directly schedule a consultation with one of our skilled attorneys. Additionally, for general information regarding construction law, check out our blog.