February 14, 2018 Article

New Ideas On How to Cope With Lawsuit Discovery

Engineering News-Record

For better or worse, dispute resolution is a necessary part of construction. In theory, the two sides should be able to quickly and efficiently present their claims to a neutral third party (a judge or arbitrator) who then decides a fair and equitable outcome based on the facts, the parties’ contract and the applicable law. In reality, however, document discovery in the age of email and electronic documents has caused the cost of dispute resolution to skyrocket to the point where some believe that it is not cost effective to contest any but the largest issues.

The thinking continues to evolve about how best to limit the cost. During 20 years as a construction lawyer, I’ve seen many clients faced with the untenable decision of choosing between capitulating to an unfair demand or going through litigation and arbitration and absorbing legal fees that can approach or even exceed the amount in dispute. After years of guiding clients through these situations, I have learned several lessons about how to drastically reduce costs.