Whether conflicts arise during unintentional or seemingly deliberate construction malfeasance, many issues surface. While each trade has expertise in that field, it is essential to look at the overall picture to determine if and where fault lies and the best method for correction.
Not all construction disputes need to go into litigation; often, communication errors cause problems and ill-will. A skillful construction litigator can diffuse hostilities and show where a misstep occurred due to misunderstandings. The legal construction professional can outline a workable settlement to rectify errors and replace blame with solutions that appeal to both parties. If an issue goes into litigation, both parties should separate litigation facts from misconceptions.
Myth #1: Good construction litigators specialize in either prosecution or defense
It is an unfortunate mistruth that plaintiffs and defendants need representation by a firm that predominantly deals with their position. Defendants wish to hire counsel with strong defense experience while plaintiffs look for an experienced prosecutor. A smart contractor will actively search for a construction professional who has extensive experience on both sides of the table.
The most powerful construction litigator is one who, from experience, can anticipate and defeat the other side's arguments. Professionals who have training and experience representing both sides of construction litigation are formidable opponents in fighting for the side they represent.
Myth #2: Construction litigation outcomes go against those with OSHA violations
This myth causes failure to litigate when a plaintiff who is partially at fault could still prevail. Some plaintiffs with strong cases believe their OSHA violation prohibits a settlement in their favor. This is not true. Granted, a strong OSHA violation may influence the court's determination of comparative negligence; however, it is not the only basis for judgment. There are variables, in spite of OSHA violations, that could mitigate its influence.
Professional litigators understand how to leverage the best deal for a client. Even if prosecuting litigants are partially responsible, they should not hesitate to go to court if counsel believes their case has merit.
Myth #3: The court's construction litigation verdict is final
Sometimes, additional facts come to light, witnesses come forward whose testimony could have changed the outcome or other crucial documents and findings appear. Equipment design flaws emerge, absolving the party deemed guilty and opening the possibility of settlement or litigation against the third party. If a case receives an unfavorable verdict, a shrewd litigator will file an appeal and work up a convincing case using the new evidence to reverse or modify the original decision. A case is not over until the court reviews the evidence on appeal.