Chapter 9: Trial Preparation
The Florida Bar, Florida Construction Law & Practice, Ninth Edition
By Robert Wilkins & Michael Gore
This chapter provides an overview of critical factors to be considered when preparing for trial in construction litigation matters. The same or similar preparation techniques can be used to resolve the case via negotiated settlement, mediation, or arbitration.
A significant first step in construction litigation is acquiring a full understanding of the elements and facts of the case. The attorney often identifies the general elements of a claim without considering the factual predicate required to prove the case. In construction litigation, there is no substitute for attention to details and scrupulous case preparation.
Construction projects are, by their nature, costly, lengthy, and complex. To prepare for complex litigation such as construction litigation, the attorney should involve the client in discussions early on to develop the necessary elements for possible claims or defenses. The client often has technical skills and/or other specific knowledge that can help identify areas of focus or the need for additional investigation. Keeping the client engaged in the process allows direct access to information, which allows for a quicker transition to the discovery phase of trial preparation.
From the time that the attorney is first introduced to the dispute by the client, he or she should be developing a pretrial plan for obtaining, organizing, and ultimately presenting the evidence. The attorney must understand the practical aspects of the dispute—what the problem is and how it occurred within the construction context. The attorney must do any legal research necessary to ascertain the applicable claims or defenses available to the client. With a general grasp of the factual context and the law, discovery and analysis of documents and witnesses crucial to the issues in dispute can take place….
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Reprinted with permission from the “Trial Preparation” chapter of Florida Construction Law & Practice, 9th edition, published by the Florida Bar. Copyright 2018. All rights reserved.