How to manage the increasing complexity of today’s Construction Claims and Disputes

Last week I was honored to once again have the opportunity to write a guest post for Virginia construction lawyer and mediator Chris Hill’s Construction Law Musings. The title of the post: Hard to Handle. The subject: How to manage the increasing complexity (and costs) of today’s construction claims and disputes.

While I certainly encourage you to read the entire post, in a nutshell, the central thesis is that the types of projects that typically become embroiled in today’s construction skirmishes represent a more sophisticated and complex project type than the single-family tract home and condo cases that dominated the last several decades. More complex projects involved in litigation and dispute means more complex analysis for evaluating such claims.

The challenge is to keep the costs of evaluating these complex claims and disputes to a minimum. Here is an excerpt that deals with that topic:

The biggest cost factor by far that we see in today’s claims and litigation world involving the built environment is dealing with the massive volume of evidence. In a single family home tract, besides the drawings and subcontracts, you aren’t going to typically find too much data to go through. On a $125-million mixed-use high rise however, you could easily find yourself with hundreds of thousands of documents. What’s worse is that those documents might be in hard copy spread amongst dozens and dozens of bankers boxes, or scanned into massive monolithic PDFs each containing thousands of pages, or even scanned into individual files per each page. And of course rarely are any of these document repositories ever well organized. The key is to retain a consultant or expert on document management to reduce wasted and duplicative effort on the part of your entire team.

What you don’t want to have happen is to have one of your experts miss a critical piece of evidence because they either weren’t provided with the document (in an attempt to reduce costs) or worse, because nobody knew the document existed. Having the right document on hand, at just the right moment, has been decisive in many cases I’ve worked on over the years. A six-figure cost for document management isn’t unwarranted in a high-stakes, bet-the-company claim when tens of millions of dollars are at stake.

Perhaps the most important factor in reducing the incredible cost of today’s complex construction claims and disputes comes down to plain old good project management. No one single person or even party can handle 100% of a complex claim. It is a collaboration between multiple lawyers, their staff, experts, consultants and others. Just like on an actual construction project, communication is key. Maintaining strict protocols for communication to ensure that what’s privileged remains so, while keeping everyone informed of what they need to know, is a dance that is not for the faint of heart.

Thanks again to Chris for inviting me to another Guest Post Friday at Construction Law Musings. I am looking forward to a guest post from Chris in the coming weeks or months to post here at AECforensics.com.


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Image of Kandyan Plate Spinners courtesy Wikimedia