Seven Stages of Commercial Construction Litigation

In the event of a commercial construction dispute, and the contracting parties cannot see eye to eye, litigation is a final course of action. Commercial construction litigation attorneys in Phoenix, Arizona, also known as construction litigators or trial lawyers, are legal representatives for contractors, subcontractors, suppliers, and other professionals in the construction industry. They, or rather, we, handle construction delays, liens, breaches of contract, bond claims, and issues related to workmanship, among others.

Construction and supply professionals must seek legal guidance as soon as any sign of a dispute emerges. With an effective attorney’s help, conflict and disagreements are remediable through alternative resolution methods such as arbitration or mediation, which bypasses the costly and time-consuming litigation process.

Should legal proceedings move forward, the following are the various stages in the construction litigation process and the role your attorney will fulfill at each stage.

Stage 1: Case Investigation

The first step in any construction litigation case involves a thorough investigation to determine whether there is sufficient evidence to either initiate a lawsuit or defend against one. During this phase, your construction lawyer in Phoenix, AZ, will meticulously gather and analyze all relevant facts and documentation related to the dispute. This process often includes locating and interviewing witnesses, collecting witness testimonies, reviewing contracts, project documents, and correspondence, and examining the sequence of events that led to the disagreement. The goal is to build a comprehensive understanding of the case’s strengths and weaknesses, which will shape the strategy moving forward.

For example, suppose a contractor is accused of providing substandard workmanship. In that case, the attorney may collect evidence such as photographs of the alleged defects, inspection reports, and testimonies from experts in the field. On the other hand, if a contractor believes they are being wrongfully accused or are facing unwarranted claims, the investigation might focus on documentation proving the quality of work or the fulfillment of contract terms.

Stage 2: Pleadings

After completing the initial investigation and deciding to proceed with the case, the next step is to draft and file pleadings. Pleadings are formal documents submitted to the court system. They outline each party’s position.

If your lawyer represents you as the plaintiff (the party initiating the lawsuit), they will draft a complaint detailing the nature of the dispute, the legal grounds for the lawsuit, and the specific remedies or compensation being sought.

Conversely, if you are the defendant (the party being sued), your attorney will respond to the complaint by investigating the allegations against you and drafting an answer. This answer will address each point raised in the complaint, either admitting, denying, or expressing a lack of knowledge about the allegations. Likewise, the attorney may file counterclaims or cross-claims if there are legal grounds to do so.

Stage 3: Discovery

Discovery is imperative in litigation, as it involves exchanging relevant information between the disputing parties. This phase eliminates trial surprises by ensuring all parties have full access to the evidence their lawyers will use or present in court. Your commercial construction attorney in Phoenix will use various discovery tools to gather the necessary information and build a strong case.

Some of these quintessential discovery methods include:

• Requests for production: Demand the other party to produce specific files, documents, records, or other tangible evidence.
• Requests for admission: Ask the opposing party to deny or admit information, which can streamline the issues that need proving at trial.
• Interrogatories: Write questions that the other party must answer under oath.
• Depositions: Record oral testimonies given under oath by witnesses or parties involved in the case for use during trial.

Aside from these methods, your attorney may file motions to compel (forcing the other party to produce evidence or answer questions) or seek protective orders to prevent disclosing sensitive information. Discovery is a complex and often contentious phase; it requires careful navigation by an experienced attorney to capitalize on opportunities and avoid pitfalls.

Stage 4: Pre-Trial Preparations

As the case progresses, avenues for dispute resolution may present themselves without going to trial. 

In the pre-trial phase, lawyers resolve many cases through negotiation, mediation, or arbitration. However, if the parties cannot reach an amicable resolution, the legal representatives will begin preparing for trial in earnest.

During this phase, your construction lawyer will finalize the evidence to be presented, including selecting and preparing expert witnesses who can provide specialized knowledge on the case’s technical aspects. These experts may include engineers, architects, or other specialists who can validate claims about construction defects, delays, or compliance with industry standards.

Your attorney may also attend pre-trial conferences with the judge and opposing counsel to discuss the case, set timelines, and potentially narrow the issues to decide at trial.

Developing a compelling trial strategy lays the groundwork for how your attorney will argue your case before the court.

Stage 5: Trial

If the case proceeds to trial, your commercial construction litigator will advocate on your behalf in court, starting with opening statements that outline the central arguments and corresponding evidence. Throughout the trial, your attorney will call witnesses, introduce documents, and make legal arguments to support your position.

An essential part of the trial is the examination and cross-examination of witnesses. Your attorney will question witnesses to elicit testimony that supports your case and will also challenge the credibility and reliability of the opposing side’s witnesses. The ability to effectively cross-examine witnesses can be a decisive factor in the trial’s outcome.

In addition to witness testimony, your attorney will draft and argue trial motions, which may include motions to dismiss certain claims or exclude specific evidence. Once each side has presented its case, closing arguments will follow, summarizing the evidence and reinforcing the key points. After which, the judge or jury will deliberate and render a verdict.

Stage 6: Settlement Negotiations

Settlement negotiations can occur at any point during the litigation process, even during trial. Often, the pressure of an impending prosecution or the uncertainty of a jury’s decision motivates parties to settle. During these negotiations, your attorney will vigorously pursue a favorable outcome, which may include financial compensation, contract modifications, or other agreed-upon terms.

Once all parties reach a settlement, they prepare agreements, releases, and other documents to formalize the terms and conclude the dispute without further litigation.

Stage 7: Appeals Process

Sometimes, the trial’s outcome may be unfavorable, or legal errors warrant an appeal. If your case reaches this stage, your commercial construction litigator in Phoenix, AZ, will evaluate the trial record to identify potential grounds for appeal. This could include improper admission or exclusion of evidence, errors in applying the law, or procedural mistakes.

During the appeals process, your attorney will draft appellate briefs that argue why the trial court’s decision is worth reversing or modifying. The appellate court will go over these briefs, along with the trial record, and may hear oral arguments from both parties before issuing a decision. The appeals process can be lengthy and complicated—it demands an exhaustive understanding of appellate law and procedure.

The Verdict

Navigating the construction litigation process requires the expertise of a seasoned attorney who understands Arizona laws and the construction sector’s ins and outs.

Whether you are a contractor, subcontractor, or supplier, securing skilled legal representation early in a dispute can make all the difference in the outcome of your case. If you are facing a construction-related legal issue, contact our office to schedule a consultation with one of our experienced attorneys.

FR Law Group is one of the best law firms in Phoenix, Arizona. Our co-founder, Troy Froderman, is a Tier 1 Ranked Attorney for the Fifth Consecutive Year and one of the Top 100 Civil Defense Litigators® for the Sixth Consecutive Year. Rest assured, your case is in expert hands.