Mississippi High Court gets it right (again) in Insurance Coverage Dispute

In a long awaited decision, the Mississippi Supreme Court ruled last week in Architex Association, Inc. v. Scottsdale Insurance Company (PDF) that construction defects caused by subcontractor negligence are occurrences(accidents) triggering coverage under the terms of a general contractors’s commercial general liability policy.

The Court’s decision is a huge victory for all the major players in residential and commercial construction. The biggest winners may be homeowners, developers, schools and state and local agencies. The cost of remedying a construction defect and the diminished value of a building caused by a construction defect often greatly exceeds the original cost of construction. Absent insurance coverage, homebuilders and general contractors often do not have the wherewithal to indemnify the owner for these legitimate damages.


>> Continue Reading Posted In Construction Claims & Disputes
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Continued Performance Clause Held Unenforceble

The Real Estate and Construction Blog  summarizes a Califonia appellate court recently held a "continued performace clause" is not enforceable when the owner commits a material breach. >> Continue Reading Posted In Construction Claims & Disputes , Construction Contracts , Construction Law , Construction Litigation
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Is there a difference between honesty and truthfulness?

For lawyers, maybe so, says Professor Peter Henning in an article for the Notre Dame Journal of Law and Ethics.

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law , Trial and Litigation Techniques
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"Binding mediation" is an oxymoron

The Supreme Court decides to revisit the issue of constitutional limits on punitive damages (UPDATED)

The Court will decide whether its earlier decision in State Farm v Campbell (i) mandates a reasonable ratio between compensatory and punitive damages when the defendants conduct was outrageous and (ii) prohibits the jury from considering the harm done to persons other than the plaintiff in making its award.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation , Insurance Bad Faith
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How not to write an arbitration agreement

The Federal Prompt Pay Act sets time limits for payment of government construction contractors

The effect of giving an insurer late notice on a otherwise covered construction claim

Construction Litigation--the Paper Chase no more

The Election-Doctrine under the Contracts Disputes Act

Under the federal Contract Disputes Act, a construction contractor seeking to overturn a contracting officer's final decision must either file a notice of appeal to a board of contract appeals within 90 days of the decision or file a complaint in the U.S. Court of Federal Claims within a year after the decision.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Government Contracts
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Visual timeline shows the levee failures that caused New Orleans to flood during hurricane Katrina

Punitive damages in construction litigation

Punitive damages sometimes are awarded in construction claim cases and often awarded in insurance bad faith cases so I note with interest that yesterday the Oregon Court of Appeals overturned a $100 million punitive damages award in a tobacco case.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Insurance Bad Faith
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Other states unlikely to sue lead paint manufacturers

Jury should not be allowed to interpret warranty against faulty materials and workmanship

$22 million earned by one engineering expert

Next time a client complains about a construction expert's fees and expenses, I'm going to send him or her a copy of "Expert Witness Industry Booming" from the Star-Telegram.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation , Trial and Litigation Techniques
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Logical arguments for winning construction claims

The presentation of construction claims sometimes suffers because not enough attention is given to whether the claim holds together logically.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Law , Construction Litigation
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Do current building codes permit building a house of cards?

That's what the Chair of the Ad Hoc Committee on Terrorism-Resistant Buildings (TRB) of the International Code Council suggested at a recent Washington meeting reports ENR.com

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Industry News , Construction Law , Construction Litigation
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Mike Wallace's unqualified rating by the American Bar Association baffles me too

Mike Wallace's unqualified rating took me by surprise. He is a fine man and an outstanding lawyer, and I say that though politically we come from different places.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Industry News , Construction Litigation , Mississippi Construction Law
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Changes to the Federal Rules of Evidence unlikely to affect construction law cases

Day on Torts summarizes changes to the Federal Rules of Evidence that will go into effect on December 1 unless Congress overturns them.

>> Continue Reading Posted In Construction Claims & Disputes , Construction Litigation
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Violation of gag order results in contemp finding in lead paint case

Construction Litigation Evidence: the Waybackmachine

I am presently prosecuting a civil RICO/ business tort case in which one of the key issues was the contents of the defendant's web site in 2004.

>> Continue Reading Posted In Construction Law , Construction Litigation , Trial and Litigation Techniques
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What standards govern expert testimony in mold, sick building and defective construction cases?

Jurors do understand technical evidence

Jurors competently deal with expert evidence according to research articles cited at the Trial Advocacy Blog.

Posted In Construction Litigation , Trial and Litigation Techniques
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Construction contract damages

City may ban Wal-Marts

That's the practical effect of a California appellate decision upholding a zoning ordinance barring "big box " retail stores. Read the summary over at the Real Estate and Construction Law Blog.

Posted In Construction Law , Construction Litigation
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Should a court enforce a contract that disclaims or limits liability for fraud?

The limits of peer review

The limits of peer review of articles and research relied upon by experts is discussed in today's New York Times (free subscription required).

Posted In Construction Law , Construction Litigation , Trial and Litigation Techniques
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Trial Court's decision likely to be the final word about your expert

Whatever the trial court decides about your expert "in the exercise of its sound discretion" is likley to stand up on appeal at least in federal court.

>> Continue Reading Posted In Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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"The handshake seals the contract..."

Enron trial woodshedding leads witness to chopping block?

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leads to?

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The New York Times reports prosecutor Sean Berkowitz made a nationally known trial consultant's woodshedding skills an issue in his cross examination of Jeffrey Skilling.

>> Continue Reading Posted In Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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Physician's mold causation testimony barred

Blog 702 reports on a recent federal appellate case affirming exclusion of a physician's opinion that toxic mold caused plaintiifs' respiratory illness.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation , Mississippi Construction Law , Toxic mold
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Stigma damages allowed for defective construction

The Washington Supreme Court joins the Mississippi Supreme Court in holding that damages for the diminished value of property as well as cost of repair damages may be recovered for construction defects.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation , Sick buildings , Toxic mold
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Is summary judgment unconstitutional?

Professor Suja Thomas argues it is in a provocative article scheduled for publication in the Virgina Law Review. Link

>> Continue Reading Posted In Construction Law , Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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$30 Million mold claim

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The Clements "knew something was wrong the November day in 2003 they moved into the Airmont home, which they first saw in August and purchased for $430,000. The windows in the front of the house were so fogged up the Clements couldn't see out of them..."

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Mississippi Construction Law , Toxic mold
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How the jury decided the lead paint manufacturers were liable


The public, lawyers and jurors see jurors as passive vessels for each sides stories and evidence. The recent jury verdict against lead paint manufacturers explodes that myth.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Mississippi Construction Law
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Wisconsin passes a right to cure law for home construction defects

Plaintiff's prospective insolvency as grounds for an injunction

The ContractsProf Blog discusses whether potential business insolvency constitutes grounds for an injunction in a breach of contracts case.

Posted In Construction Contracts , Construction Litigation , Mississippi Construction Law , Trial and Litigation Techniques
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Sick Building or Lousy Job?

Is the building or your lousy job the cause of your headache, cough, dry eyes, fatigue, rashes, sore throat, and wheeze?

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Sick buildings
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On Stupidity and multitasking

Applying Daubert to engineers testimony about defective design

Peter Nordberg over at Blog 702 posts on whether the Daubert standards for scientific expert testimony should be applied to engineering testimony on defective product design.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation
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Blogs on Alternative Dispute Resolution

Reading facial expressions

How good are you at it? To see, check out the links to eye opening tests over at the Online Guide to Mediation.

>> Continue Reading Posted In Construction Litigation , Trial and Litigation Techniques
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No jury trials in New Orleans construction cases this year?

Construction progress spy in the sky?

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Check out this report on how the USDA is using satellites to monitor farmers for false crop insurance claims. Could they be used in construction cases? You betcha!

Posted In Trial and Litigation Techniques
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Choice of law in international construction arbitrations

Construction consultant William Langton posts on what law governs when a construction dispute is decided by international commercial arbitration.

Posted In Alternative Dispute Resolution
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Arbitration ordered though no arbitration agreement produced

The U.S. Court of Appeals for the Fifth Circuit held last month that the existence of a written agreement to arbitrate may be proven by testimony if the agreement itself cannot be found. Link

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law
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How to teach a jury or a judge or an arbitrator!

Kathy Sierra's posts over at Creating Passionate Users almost always strike a responsive chord with me. She's done it again with a "Crash course in learning theory."

>> Continue Reading Posted In Trial and Litigation Techniques
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Active versus passive voice in persuasive writing

Construction lawyers write a lot of letters, motions and briefs. We learned in legal writing 101 if we didn't learn it in freshman english we should write most of our sentences in the active rather than passive voice? But how do we tell the difference?

>> Continue Reading Posted In Trial and Litigation Techniques
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More than an appearance of impropriety!

The Supreme Court is being asked to decide: "May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party's case is pending, cast the deciding vote in that party's favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?"

>> Continue Reading Posted In Trial and Litigation Techniques
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Preparing for E-discovery

The InHouseBlog points to an article of some of the e-discovery considerations corporate counsel should consider before suit is filed.

Posted In Trial and Litigation Techniques
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Avoiding loss trumps maximizing gain in settlement negotiations and mediation

The Online Guide to Mediation posts on research suggesting avoiding loss influences our choices more than maximizing gain.

>> Continue Reading Posted In Trial and Litigation Techniques
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"Deselecting" the jury

As a follow up to my recent post on jury research, read Clay Conrad's criticism of the misinformation the public is given about jury selection over at Jurygeek and my comment about "deselection" of jurors.

Posted In Trial and Litigation Techniques
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Your attorney:-- expert or advisor?

Amazing Firms Amazing Practices points to legal service maven David Maister article characterizing lawyers as either transactional experts or beloved advisers.

>> Continue Reading Posted In Trial and Litigation Techniques
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When does interest begin to run on an arbitration award?

Washington Construction Law posts on a case holding arbitration awards are not final judgments and, therefore, do not accrue interest.

Posted In Alternative Dispute Resolution
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Juror attitudes in construction and insurance cases

Contractor settles False Claims Act claim for $3 million

Houston based Williams Brothers Construction Company agreed to pay the federal government $3 million to settle False Claims Act and administrative claims for knowingly violating Disadvantaged Business Enterprise contracting requirements on federally funded highway projects.

>> Continue Reading Posted In Construction Law , False Claims & Fraud
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Dynamite Charges to the Jury

Point of Law points to a PrawfsBlawg post by David Hoffman explaining the use of "Allen" or "Dynamite" jury instructions telling jurors to continue deliberating even though they report being deadlocked.

>> Continue Reading Posted In Trial and Litigation Techniques
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Builders and lawyers ethics questioned by public

Robert Ambrogi's LawSites points to the annual Gallup poll rating the honesty and ethical standards of professions. Lawyers and building contractors rated near the bottom.

Posted In Trial and Litigation Techniques
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Fellow travelers--construction law blogs

The Online Guide to Mediation lists construction law blogs including yours truly.

Posted In Alternative Dispute Resolution , Construction Law
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Three legal Wickis and counting

The Illinois Trial Practice Weblog points to Wickilaw and Wex both of which aim at the whole of the legal universe and to the Katrina focused Lousiana Law blog Ernie the Attorney is promoting.

>> Continue Reading Posted In Construction Law , Hurricane Katrina , Trial and Litigation Techniques
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City hit with $10.5 million verdict for arbitrary denial of building permit

When can you throw away those old project records?

InhouseBlog points to a "how to" article that will keep you out of legaL hot water.

Posted In Construction Law , Trial and Litigation Techniques
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Is each sale of a defective construction product an occurence for purposes of insurance coverage? ?

So Sue Me

Free On-line legal encyclopedia and dictionary

The InhouseBlog points to Wex--a collaboratively-created, public-access legal dictionary and encyclopedia--sponsored by the Legal Information Institute at CornellLaw School.

>> Continue Reading Posted In Construction Law , Government Contracts , Trial and Litigation Techniques
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Economic loss doctrine does not shield developer from construction defect claim

Washington Construction Law points to McMilkle v Lang, a Washington appeals case holding the economic loss doctrine does not bar an owner from suing a subdivision developer and engineer for economic losses caused by defective construction.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation
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Winning your construction claim: presenting deposition testimony at trial

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When a witness's deposition testimony is presented at trial, is it better to play the jury a video of the witness testifying or to have a stand in read the witness's testimony?

>> Continue Reading Posted In Trial and Litigation Techniques
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Recovering lost profits: Margin vs. Mark-Up

The Construction Contractor's Digest explains the difference between these terms and the formula for calculating each.

>> Continue Reading Posted In Construction Contracts , Trial and Litigation Techniques
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Demographic and housing mapping of your jury panel

Want a demographic snapshot of the potential jury pool or compare the panel you drew to the relevant population base to see if its skewed? Want to see what kind of housing predominates around a prospective juror's address--without a drive by?

>> Continue Reading Posted In Trial and Litigation Techniques
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Juror attitudes about your insurance claim

Revisiting "Getting to Yes"

Arnie Herz over at Legal Sanity points to a new "must read" book by negotiation gurus Roger Fisher and Daniel Shapiro entitled, Beyond Reason: Using Emotions as You Negotiate.

>> Continue Reading Posted In Alternative Dispute Resolution , Trial and Litigation Techniques
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Famous trials

Standard deposition questions

Here's a list of standard deposition topics and questions compiled by Evan Schaeffer at his The Illinois Trial Practice Weblog.

Posted In Trial and Litigation Techniques
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Explaining burden of proof at trial

If your goal is to defeat a construction claim, you want the judge or jury to picture the claimant's burden like this:

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>> Continue Reading Posted In Trial and Litigation Techniques
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Are you ready... for trial?

The meaning of good faith and fair dealing

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The Delaware Corporate and Commercial Litigation Blog points to the excellent discussion of the duty of good faith and fair dealing in Dunlap v State Farm Casualty Co., a Delaware Supreme Court decision.

>> Continue Reading Posted In Trial and Litigation Techniques
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Number trial exhibits in order of importance to jury deliberation

When exhibits are numbered in advance of trial, exhibit 1 should be the documents or items you most want the jury to see, exhibit 2 the second most important document and, so on, recommends The Illinois Trial Practice Weblog.

>> Continue Reading Posted In Trial and Litigation Techniques
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$24.75 million False Claims Act settlement

A joint venture of engineering and construction companies settled the claim brought by the federal government for allegedly submitting inflated claims on Amtrak's project to electrify the rails between New haven and Boston, reports the False Claims Act/Qui Tam Blog.

Posted In False Claims & Fraud
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Failure to request time extension within 10 days of delaying event wrecks delay claim

Ignorance about the jury system.

Public awareness of the importance of the jury system is hampered by many lawyers and judges ignorance of the history, purpose of the jury and social science research done on the jury system, according to Jurygeek.

>> Continue Reading Posted In Trial and Litigation Techniques
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Arbitration award set aside because of arbitrator failure to disclose conflict

A California Court of Appeals vacated an arbitrator's $3.3 million award because he failed to timely disclose he was retained as an arbitrator in another case involving the attorneys for one of the parties. The case is summarized over at the the Real Estate and Construction Law blog.

>> Continue Reading Posted In Alternative Dispute Resolution
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Mold, Sick Building and Construction Defect Alert

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Here are reports from California, Illinois, Texas, Pennsylvania, South Carolina, Connecticut, Florida and Arkansas. Mold woes from summer humidity continue to torture school districts.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation
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Project designer may not unreasonably rely on information supplied by others

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The Construction Risk.com Report points to a Wisconsin appellate court decision holding a contract clause permitting an architect to rely on reports from other firms does not relieve the architect of its duty to inform the owner of inadequacies in the report and the need for additional investigation.

>> Continue Reading Posted In Construction Contracts , Construction Defects & Defective Construction , Construction Law , Construction Litigation
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Arbitration not causing decline in jury trials.

The National Arbitration Forum Blog posts on the myth that arbitration is causing the decline in jury trials; the high cost of trying a case is behind the vanishing jury trial.

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law , Construction Litigation
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Mold, Sick Building and Construction Defects Alert

remove2.jpg For many schools, the price of a hot summer has been bills for mold inspection and remediation. Here are reports on mold and other problems from Lousiana, Michigan, Pennsylvania, Virginia, Hawaii, North Carolina, Illionois, South Carolina, California, Washington and Florida.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation
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Evidence from old web sites

There are useful links to material on retrieving and using archived information from companies' web sites as evidence over at Be Specific.

Posted In Construction Law , Construction Litigation , Trial and Litigation Techniques
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When lawyers behave badly in discovery

Declarations and Exclusions gives a real life example of how lawyers' manufacture of discovery disputes can make discovery needlessly more expensive for their own clients as well as the other parties.

>> Continue Reading Posted In Construction Law , Trial and Litigation Techniques
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Florida court holds contractor must prove work suspended to recover home office overhead damages for delay

On deleting evidence

Freedom Tower copyright suit continues

The Construction Attorney Blog posts on the copyright suit pending over the similarities in the design an architectural firm submitted for Freedom Tower at the World Trade Center site and a student architectural project.

>> Continue Reading Posted In Construction Law , Construction Litigation , Intellectual Property
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ASPE certfication for estimators

Physician permitted to testify mold caused personal injury

Blog 702 points us to Searles v. Fleetwood Homes,Inc., a Maine Supreme Court decision affirming a physician's testimony that mold caused the plaintiffs' respiratory problems. The court also affirmed the trial court's refusal to give the jury a comparative negligence instruction.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation
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Arbitration Clauses in non commercial contracts

Here's some good advice from the National Association of Home Builders on drafting a drafting a binding arbitration clause for non-commercial building projects.

Posted In Alternative Dispute Resolution , Construction Contracts
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Mold, Sick Building and Construction Defect Alert

Here's an update on mold, sick building and construction defect cases and news from around the country.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Construction Litigation
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AIA arbitration clause negated by termination of contract

Mississippi construction law and claims news: the Tupelo Fairpark project dispute

"This story is about dirt," said Thomas W. Prewitt, the Dean of the Mississippi construction law bar, "It's a story about dirt wetted by the blood of friendship broken and packed by orders of hurry and get it done and I'll pay you later."

>> Continue Reading Posted In Construction Law , Construction Litigation , Surety Bonds
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Are time limits for filing suit in construction bonds enforceable in Lousiana?

California strikes down pre dispute contract jury trial waivers

There's a good summary of the decision and you can download it over at the Construction Attorney Blog.

Posted In Alternative Dispute Resolution , Construction Contracts , False Claims & Fraud
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Revisiting helping jurors understand the burden of proof.

The importance of helping jurors understand the burden of proof is underlined by a recent New York ruling reported by Law.com throwing out a verdict because the jurors consulted a dictionary to try to figure out what the word "preponderance" meant. The trial judge had instructed the jury the plaintiff had to prove her case by a "preponderance of the evidence."

>> Continue Reading Posted In Construction Litigation , Trial and Litigation Techniques
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Punitive Damages update

The Tennessee Business Litigation Law blog points to an article by a defense attorney about how the lower courts are applying the Supreme Court's decision in State Farm v. Campbell on the constitutional limits of punitive damages awards.

Posted In Construction Law , Construction Litigation , Insurance , Surety Bonds
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Principles for construction claim jury trials and other cases too

The principles were formulated by the American Bar Association (ABA); there's an excellent summary of the debate over some of the principles in this Virginia Lawyers Weekly Article. Thanks to Point of Law for pointing us to this article.

>> Continue Reading Posted In Trial and Litigation Techniques
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Proving willful misconduct by a contractor

Construction defect experts' affidavits were held sufficient to create a fact issue over whether construction defects in numerous homes were the result of "willful misconduct" by the contractor by a California Court of Appeals in Acosta v. Glenfed Development Corp.

>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Litigation , Trial and Litigation Techniques
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On the use of Latin in briefs and court opinions.

More on Type II Contracts--the duty to negotiate in good faith

The federal Second Circuit Court of Appeals recognized preliminary agreements to enter into construction contracts create an enforceable duty to negotiate in good faith last month in Brown v. Cara.

>> Continue Reading Posted In False Claims & Fraud
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Teaching jurors the burden of proof through witness testimony

The South Carolina Trial Law Blog describes the approach suggested by David Ball, a most excellent trial consultant.

Posted In Trial and Litigation Techniques
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How E-Mail is revolutionizing litigation

Read a comment and click to the article, all at the Inhouse Blog.

Posted In Trial and Litigation Techniques
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Attorneys Fees Held Not A Collateral Issue

When a claimant seeks attorneys fees under a contract clause providing for attorneys fees for breach of contract the claimant must prove both entitlement and the amount of the fees as part of his substantive claim the Fourth Circuit ruled earlier this week in Carolina Power v Dynergy Marketing.

>> Continue Reading Posted In Trial and Litigation Techniques
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Judge John Roberts on Construction Law Issues

A Lexis search turned up three opinions directly related to construction law issues and claims authored by President Bush's nominee for the Supreme Court, Judge John Roberts of the D.C. Circuit.

>> Continue Reading Posted In Alternative Dispute Resolution , Construction Law , False Claims & Fraud
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Accounting standards for reporting contract losses and construction claims

Last week the first circuit detailed the accounting standards applicable to long term construction projects in In re Stone & Webster, Inc., Securities Litigation. Download file

>> Continue Reading Posted In Trial and Litigation Techniques
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Inability to Recognize Juror Bias

The Court's Voir Dire Instruction

Developers Restricting Home Owners Associations Right to Sue

To limit construction defect suits, some developers are including clauses waiving any claims if notice is not given within 30 days and clauses requiring arbitration according to the Colorado Home Owners Association Law Blog.

Posted In Alternative Dispute Resolution , Construction Contracts , Construction Defects & Defective Construction
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Are the professionals who work on a project expert as well as occurrence witnesses?

Trying to avoid pre-trial disclosure rules and Daubert challenges by project professionals' testimony as "lay opinion" or "eyewitness" testimony is likely to backfire.

>> Continue Reading Posted In Trial and Litigation Techniques
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Arbitrator May Correct Ambiguous Award

Arbitrator Not Court Decides Timeliness of Arbitration Demand

Applying the Federal Arbitration Act, a Texas appellate court ruled last week that the arbitrator, not the court, must decide whether a contractor's failure to demand arbitration within 30 days of the architect's final decision on its claim makes the architect's decision final and binding.

>> Continue Reading Posted In Alternative Dispute Resolution
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Knowing Your Best Alternatives Key to Negotiations

I am a disciple of the negotiating approach explained in Fisher and Ury, Getting to Yes: Negotiating Agreement Without Giving In. One key to getting to yes in any negotiation is knowing and appreciating your "best alternative to a negotiated agreement" (BATNA).

>> Continue Reading Posted In Alternative Dispute Resolution , Trial and Litigation Techniques
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Do It in Writing

Most Excellent Links on Electronic Discovery

Dennis Kennedy's post on electronic discovery resources is a great place to start for those ready to finally dip their big toe into this important legal subject.

>> Continue Reading Posted In Trial and Litigation Techniques
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Alternative Fee Arrangements For Business Litigation Grow In Popularity

Thanks to the Tennessee Business Litigation Blog for summarizing this Corporate Counsel article on the advantages to businesses of retaining attorneys on a contingent fee basis. The article also discusses hybrid arrangements involving a reduced hourly rate plus a contingent bonus.

>> Continue Reading Posted In Trial and Litigation Techniques
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E-Mail Sufficient to Bind Parties to Arbitrate

E-mails may be used to form an enforecable contract to arbititrate under a holding by the United States Court of Appeals for the First Circuit.

>> Continue Reading Posted In Alternative Dispute Resolution
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Are State Contracts Funded With Federal Funds Within the Scope of the False Claims Act?

A Utah federal district court decided two whistleblowers may proceed under the False Claims Act against a consortium of contractors involved in a $1.59 billion Utah Interstate Highway project even though the allegedly fraudulent claims were presented to a federal grantee--the Utah Department of Transportation--not a federal officer. The court declined to follow a 2004 D.C. Circuit opinion that presentment of a false claim to a federal grantee rather than the federal government falls outside of the False Claims Act.

>> Continue Reading Posted In False Claims & Fraud
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Damages Allowed for Sucessful Bid Protest

An Ohio appeals court recently ruled in Cementech v City of Flowood, Download file , that a disappointed bidder can recover lost profits as well as bid preparation costs in a lawsuit successfully challenging the wrongful award of a construction contract to another bidder.

Contrast this holding with our post on Hill Brothers Construction & Engineering Company, Inc. v. Mississippi Transportation Commission , a recent Mississippi Supreme Court decision, in which a majority declared damages were not recoverable.

>> Continue Reading Posted In False Claims & Fraud
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No Constitutional Limit on Punitive Damage Awards in Arbitration?

Read this post from the Construction Law Blog briefing the Connecticut Supreme Court's holding in Medvalusa Health Programs, Inc. v. Membership, Inc that neither the due process clause in the 14th Amendment nor state public policy limit the amount an arbitration panel may award in punitive damages.

>> Continue Reading Posted In Construction Litigation
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To Save $8 Million-- Rules Can Be Bent

In Hill Brothers Construction & Engineering Company, Inc. v. Mississippi Transportation Commission, Download file , the Mississippi Supreme Court held cost savings could be considered by a state board in deciding whether to accept a bid that did not strictly comply with the bid specifications.

>> Continue Reading Posted In False Claims & Fraud
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Actual Receipt of Notice Means Actual Receipt of Notice Under the Contracts Disputes Act

The difficulty of proving receipt by mail or facsimile is illustrated by last weeks decision of the Federal Circuit Court of Appeals in Riley and Ephrian Construction Company, Inc. v. United States, Download file reversing a summary judgment holding a contractor's suit under the Contract Disputes Act was time barred because it was filed more than one year after the contracting officer mailed and faxed notice of his decision rejecting the claim.

>> Continue Reading Posted In False Claims & Fraud
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Using a "Weighted Factor Tool" for Resolving Delay and Disruption claims

Contractors asserting claims for loss of productivity and delays often have difficulty proving damage causation. The impact damages sought by the contractor may result from the cumulative effect of multiple events some of which are compensable and some of which are not. Segregating the compensable impacts from the non compensable impacts on the contractor is often difficult to do. This difficulty often hampers the parties ability to negotiate a fair outcome.

A new tool to address this problem--the "weighted factor tool" (WFT)- was presented at the recent Denver leadership conference held by the Construction Owners Association of America(COAA). The creators, Patrick McGeehin of Rubino & McGeehin and Richard Martone of PMA Consultants, L.L.C. are nationally known and have played leading roles in negotiating settlements of contractor impact claims involving the controversial Big Dig project in Boston.

>> Continue Reading Posted In Construction Litigation
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Why this Blog?

I see blogging as a new way to share knowledge and ideas with others interested in construction law and the construction industry. I've written my share of articles, spoken at many seminars and attended many more in the two decades I've been practicing. But these forms of communication flow one way, involve complicated logistics and cost too much for too little. Bloggers share knowledge and ideas on their schedule at modest expense.

Political bloggers are revolutionizing how elections are fought and changing the way many of us get the news. I'm with those who think blogging will change how we practice law too. Denise Howell at Between Lawyers sums it up this way: "Blogging will make more relevant, quality legal information more readily available, which will put its own pressures on the practice. It will serve to make clients and members of the profession increasingly better informed about resources and options." For a collection of comments on legal blogs check out the recent posts collected by Kevin O'Keefe, my blogging sensei, at Real Lawyers Have Blogs.

Posted In Trial and Litigation Techniques
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Budgeting legal fees and clients ability to pay