Using contract language to limit discovery and excessive legal costs in construction defect litigation

According to Richard Korman at Engineering News-Record, construction attorneys are trying to limit discovery with contract language. The attorneys are hoping to eliminate email from discovery requests in an effort to reduce the cost of litigation. The article states that it is common for individuals on construction projects to send/receive upwards of 10,000 emails over the course of a large project.

Controlling costs can be much more difficult in defect cases involving insurance company attorneys, another attorney suggests. The insurers tend to use busy lawyers accustomed to spending whatever is necessary to win without regard to time or cost, he says.  “They are more inclined to delay and won’t even get around to looking at your case until four months are gone by, then won’t evaluate until eight months have gone by,” says the attorney. “The only thing that moves those attorneys is the impending trial date.”

And any legal strategy, attorneys and insurance agents say, should take settling before trial into consideration because costs of a trial can exceed damage awards in successful lawsuits.

Dan Knise, chief executive of insurance broker Ames & Gough, says it’s important to have a plan because a firm involved in ltigation could get to a discovery phase and spend $300,000 to $400,000 “when you could have settled for $250,000. You have to have a budget and a strategy because sometimes defense costs more than a settlement.