May 3, 2019
Karen Lisko, Ph.D., Senior Litigation Consultant Perkins Coie LLP
Construction delay disputes hit close to home for many jurors. These fact-finders can relate to issues they have encountered with construction projects they have personally done or hired out in their own homes or businesses. As a result, jurors are often highly motivated to pay close attention to this kind of case. They are affected by their expectations of how the owner and contractor should have behaved on the project, based on their own experiences.
12 KEY JUROR TRUTHS IN CONSTRUCTION DELAY CASES
Regardless of the venue where a construction case is heard, jurors can share many biases in this type of litigation. These biases have been borne out through post-trial interviews with actual jurors in construction delay litigation, in privately funded mock trial research, and through a review of the academic literature.
Juror Truth No. 1: For jurors, the case is rarely about the “nuts and bolts” problems on the construction site. Jurors focus more on contractual commitments, deadlines missed, and on breakdowns in communication. Only a small minority of jurors focus on the engineering aspects of the project. For example, in one mock trial, we asked jurors to describe in their own words what stood out to them upon hearing arguments for both sides. Their pattern of responses was telling:
- “A lack of communication.”
- “The typical problems of construction.”
- “The necessity to meet contractual obligations.”
During focus group research on another construction case, our content analysis of jurors’ comments during the interviews unearthed a consistent return to jurors’ internal theme of responsibility. No one focused on measurements of steel girders or on the dispute over the completeness of allegedly flawed design plans. They focused on the people in the case, and on their relationships to one another and to their own commitments. This “people focus” is the common denominator in construction delay litigation.
Juror Truth No. 2: Jurors focus on each party’s power to prevent problems before and during construction and to fix problems as they arose. Jurors tend to create a mental checklist of the power each party had and the choices each party made within those options.
Juror Truth No. 3: Jurors typically rely first on their own “local construction project expertise” before turning to the paid experts’ interpretations. The jury is composed of homeowners with varying levels of experience with construction projects. They may have tried their hand at doing their own work with mixed results. They may have hired a general contractor or subcontractor to tackle a project — again, with varying levels of success. From those experiences, which often become mini-dramas in their lives, they draw their own conclusions about the responsibilities each party has in a construction project. They then tend to compare the fact witnesses’ and experts’ conclusions with their own. As unfair as it may seem, jurors are also prone to generalize the parties’ behavior with their own more generic (frequently negative) experiences with contractors.
Juror Truth No. 4: Jurors’ negative perceptions of contractors can sometimes work in the defendant contractor’s favor. In an ironic twist of logic, jurors who have low expectations of contractors can punish the owner for having expected more of that party. Jurors have reported post-trial that the owner “should have known better” than to expect the contractor to meet his original deadlines. As a result, they can assign greater responsibility to the owner for not setting realistic expectations from day one of the project.
Juror Truth No. 5: The more sophisticated the plaintiff owner, the more likely jurors are to scrutinize and penalize that party. Private owners who have significant developer experience, or who are governmental entities with engineering expertise, bear a greater jury burden to explain why they were unable to prevent the project from going off track, even if they can show they have never personally built such a project.
Juror Truth No. 6: Jurors are keenly interested in knowing the winning contractor’s bid in comparison to the losing contractors’ bids. In a variation on a common saying, jurors will freely apply a “you deserve what you pay for” philosophy to one party or the other, depending on their assessment of the bid. If the contractor’s bid strikes jurors as low, they will punish the owner for not knowing “you get what you pay for,” and the owner loses a lot of power to complain about a contractor who underbid others. If, however, the contractor’s bid strikes jurors as high, they could punish the contractor for failing to meet their heightened expectations of work quality.
Juror Truth No. 7: Jurors focus a great deal on the pre-bid process, the time when the parties have their first opportunities to substantively communicate their mutual needs and desires for the project. Jurors want to know the information the owner and contractor shared and sought. Armed with that knowledge, they use it to assess whether each party did everything possible to achieve a clear, detailed understanding of the project and the steps contemplated before contracts were signed and a work plan was created.
Juror Truth No. 8: Jurors want to know if patterns of behavior or patterns of problems explain inevitable cost overruns on the project. While jurors can come to understand the “critical path” concept, they still want more fundamentals in assessing patterns of behavior. One or two gaffes on the part of the owner or contractor are forgivable. More errors than that (within the party’s control) convince most jurors that one party had power over the other that worked to the deadline’s detriment.
Juror Truth No. 9: When project delays are at issue, jurors are quite interested in understanding a “critical path” timeline of events to see where delays occurred. However, jurors often struggle with many construction experts’ critical path timelines, finding the high level of detail on a single demonstrative difficult to decipher. Construction experts and attorneys are likely comfortable with the layout, given their experience with such graphics, but plaintiff and defense jurors alike need a more “user-friendly” visual to convey the same intent.
Juror Truth No. 10: Jurors rely heavily on “in-progress” photographs or drawings to make sense of what occurred over time. Most jurors learn visually. Unlike other types of cases, where jurors’ own imagination can provide ample (or better) detail regarding the case events, in construction cases most jurors need to understand the misconduct spatially, from a chart or animation. That said, clarity can either be a great ally or a great enemy to one side or the other in a given case. An attorney’s or witness’s verbal description of the misconduct can greatly affect jurors’ understanding of the case. Counsel should take great care in assessing how clarity or the lack thereof affects her case before proceeding to trial.
Juror Truth No. 11: Jurors make sense of what they believe happened in a case by finding a coherent story to make sense of the evidence they find to be most important. If you do not provide enough of a coherent or compelling story, jurors will create one for you (or for your opponent, depending on which evidence they attach themselves to). Certain jurors will use deliberations as a forum for “re-enacting” the story of what happened through extralegal means, either through comparing it to their own experiences or through describing the delays on the given project if it was high-profile enough to reach their own or the media’s attention as it was unraveling.
Juror Truth No. 12: Jurors often apply 20/20 hindsight when determining what the parties could have done to prevent delays or structural problems. The fact that the errors may now be physically obvious makes some jurors prone to conclude the errors should have been obvious as they were made.
JURORS’ KEY QUESTIONS IN CONSTRUCTION DELAY CASES
Once jurors start hearing about the case, they tend to have repetitive questions that are critical for counsel to answer. Of course, in many instances, the answers to those questions are inadmissible. Despite that fact, if these questions never get satisfactorily answered during trial, jurors have been known to send the question to the judge for clarification during deliberations and/or to fill in the gaps on their own — even if the issue was ruled inadmissible.
|JURY QUESTION||SIGNIFICANCE OF THE QUESTION TO THE JURY|
|How much experience did the contractor have working this type of project?||Jurors want to understand the sophistication level of the contractor. The greater the contractor’s sophistication, the more responsibility the jury is likely to assign him/her.|
|How much experience did the owner/developer have managing this type of project?||Just as with the contractor, jurors want to understand the owner’s/developer’s sophistication level with this particular type of project. Again, the greater the contractor’s sophistication, the more responsibility the jury is likely to assign him/her.|
|Had this particular owner and contractor worked together before? If so, what was the nature of their previous relationship and roles?||If the parties had a prior working relationship, jurors often expect more of their mutual understanding of one another.|
|Did an independent reviewer or review board assess the problems on the project and reach a conclusion regarding blame?||Jurors often feel intimidated by the accusations levied in a construction matter. They tend to see a reviewer as a neutral third party with the sophistication to judge the facts.|
|How well or poorly had this contractor performed in other similar projects in the past?||If the contractor had a poor track record, jurors want to know if the opposing party was aware of that track record.|
|What does the contract say with regard to the roles and responsibilities of each party?||Jurors use the contract terms as a checklist by which to judge the parties.|
|What does the contract say with regard to bonus compensation for beating deadlines or penalties for delays?||Jurors want to understand if deadlines were motivators for behavior on either party’s part.|
|If change orders were involved, how well or poorly did the issuer detail the scope of each change?||Change orders can provide a tie-breaker for detailing the parties’ dealings over the period in dispute.|
|Did the number of change orders in the case exceed or mirror the number typically found in a project of this size?||Jurors like to understand how much more demanding this particular project was in comparison to a baseline of others.|
|If subcontractors were involved, what do they say about problems on the job site?||Jurors often value the opinions of subcontractors as pseudo-neutral third parties.|
|Was the owner/developer reasonable in allowing extensions for delays outside the contractor’s control (i.e., acts of God such as weather)?||Jurors rely on the past behavior of the owner/developer in dealing with the opposing party more than they rely on the owner’s/developer’s word on the witness stand.|
|How did the parties handle safety issues?||Even if safety is not an issue in the case, jurors like to rely on the parties’ attention to safety as a litmus test for behavior in other ways on the project.|
|If the project was state or federally run, did any low-bid requirements apply?||Jurors tend to question the validity of a bid amount when they know it was made in the context of mandated low bid requirements by statute.|
|What mechanism did the owner and contractor have in place to ensure they communicated properly?||Jurors are keenly interested in understanding where and when communication broke down.|
|Will insurance cover any of the damages?||In most jurisdictions, jurors are not allowed to know whether the defendant’s insurance will cover plaintiff’s damages. Still, jurors are usually keenly interested in knowing how insurance plays into any payout.|
|What is the physical condition of the property/project now?||Jurors want to assess the quality of the project for themselves. The physical “look” of the property provides a clue to them about its quality.|
|Who was part of the universe of people who worked on/refined the design plans? Did the developer provide plans that were not to be altered? Did the contractor alter them? Who had what authority to revise them?||The more the plans were revised, the more jurors expect the “revisers” to be accountable for problems.|
|How much did the design plans change from the first phase to the last phase of the build? What patterns led to the design changes?||Jurors want to understand if quality concerns led to design changes and, if so, who created the quality problems and who appeared to solve them.|
Of course, every case has different facts and different witnesses. Every jury is different. Still, these patterns are exactly that — patterns that appear in many cases, either prominently or subtly. When you devise your trial strategy armed with this knowledge, you are far more likely to connect with and persuade the jury.
 Karen Lisko, Proven Jury Arguments & Evidence, (Costa Mesa: James Publishing, 2012).