Construction Owners & Builders Law Blog

Judge Gladys Kessler's opinion in United States v Phillip Morris properly slams the  role attorneys played in the fraud perpetrated on the public by Big Tobacco.

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

The Times-Picayune presents an amazing animated graphic showing the time line for the levee failures and flooding in New Orleans during Katrina.

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.

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.

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

The ContractsProf Blog points to a contract damages flowchart prepared by Profesor Tom Bell for his law students.

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

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.

Depeche Mode on contracts psoted at ContractsProfBlog.

leads to?

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.

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

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

A most excellent post over at Creating Passionate Users.

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

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!

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."

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?

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?"

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

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

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.

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

Check out these articles at Trial Behavior Consulting on juror attitudes and trial tactics in cases involving toxic mold , construction defects, insurance coverage, insurance bad faith and insurance company witnesses.

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.

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.

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.

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

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

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?

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

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?

Marc Mayer over at Insurance Scrawl discusses focus group research suggesting the lowering of expectations of jurors as to appropriate insurance company conduct.

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.

"Mississippi Burning" Trial

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

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

Here's a checklist of basics courtesy of the Tennessee Business Litigation Blog.

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.

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.

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.

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

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.

Electronic Discovery and Evidence points out this excellent LA Times article on the battle between computer forensic experts and designers of programs to erase computer data.

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."

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.

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.

"I Don't Speak Latin, and Neither Do You" complains Evan Schaeffer over at the Illinois Trial Practice Weblog. My thought--Amen, Brother!

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

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

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.

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

A recent post over at Point of Law by Jonathan Wilson unwittingly proves the existence of blind spot bias.

The Tennessee Business Litigation Law Blog points to an outstanding article on how a trial court's instruction may encourage candor in voir dire..

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

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).

A reminder everyone in business needs to heed from over at BizzBangBuzz Blog.

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.

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.

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.

I've joined the discussion over at The Greatest American Lawyer.