After the Job
Once substantial completion is achieved, and the punch lists are in the works, there are still opportunities to keep disputes within a narrow range where resolution without resort to lawyers is achievable.
A. Make sure you get the certificate of occupancy or other inspection, to document when your work was complete. If there were time requests or other change orders pending, get them signed and returned so that anyone – a judge, a jury, an arbitrator, etc. – could follow the paper trail. (The cases that are the most clear cut are the ones least likely actually to be contested.)
B. Consider the solvency of the entity obligated to issue final payment. If problems are suspected, raise the issue tactfully but without delay. Know your bond and lien rights and deadlines.
C. In all things, maintain an attitude receptive to reasonable compromise. Some contracts now even require mediation as a condition to a right to sue. While those clauses can themselves sometimes be problematic – a hurdle to the innocent when the other side has no genuine intention of compromising – to the extent that participation in mediation indicates a genuine desire to reach agreement, mediation can be very successful.
If Litigation Appears Necessary
Even if you do everything as recommended, you will have those cases where litigation just cannot be avoided. It may be because the other side does not have the means to pay you, and you need to get your claims resolved so that you can move on to looking for a means of collection. It may be because you had a first encounter with a litigious person – someone you’d never deal with again, but who will not consider reasonable compromise in the current situation.
A. Keep your emotions in check. Do not make decisions based on emotional reactions or a desire to maintain control or to get the upper hand. Evaluate cases dispassionately, keeping in mind that the lawsuit will be strictly a financial exercise – nothing more can be accomplished other than to move money from one side to the other, or to lawyers.
B. Choose the right lawyer. It’s not enough that your lawyer may have experience in construction cases. More important is whether the lawyer works with you to evaluate your case thoroughly before firing off in all directions. You don’t really want to leave no stone unturned when turning over stones costs thousands of dollars per stone. A good lawyer works with the client to develop a litigation plan that is tailored to the specific case, that avoids metastasizing the litigation through needless skirmishes over trivialities, and that executes the plan without losing focus and going down countless blind alleys. A lawyer who seems to do these things, or who stokes your emotions instead of encouraging you to make sound financial decisions, is one who will miss opportunities for settlement and end up sending you huge invoices for all the work he does.
C. Be prepared for a possible defeat. This will condition you to seek out reasonable compromise, and even if you had difficulty getting a friendly reception to past overtures, as the other side has its positions reviewed by its own lawyers (and starts getting their bills), their attitude may soften. In addition, you must be prepared to survive a bad result in litigation if only because no one can guarantee you that you will win your case. Even in the best cases with the best clients and the best lawyers, Murphy’s Law applies. (Perhaps not as much as some would have you believe, but certainly to some extent.)
D. Consider your options for resolving the particular dispute before you, including:
- Negotiation
- Mediation
- Arbitration
- Court, with jury
- Court, without jury
Depending upon your contract documents, your options may be limited or even prescribed by the time you reach this stage. But in many cases, there is room to propose alternative procedures in an effort to get the other side committed to a swift and economical resolution even in those cases where you need a referee to help you close the case out.
The materials on this website are meant for informational purposes only and nothing contained in this site is to be construed as legal advice. If you need legal advice, you should contact an attorney directly. Do not act upon the information on this site without seeking professional guidance. Information on this website about specific matters or success in previous cases is not meant to be a prediction or guarantee of similar results in any other case. Each case consists of factors and applicable law unique to that case and you should consult an attorney.
