Navigating the complexities of a construction project requires a skilled team, robust contracts, and significant resources. However, even the most meticulously planned projects can encounter unexpected issues. 

That’s where construction litigation comes into play. For anyone in the construction industry, understanding construction litigation and its potential impact is essential.

In this blog, we’ll explore the common causes of disputes, the crucial role of construction attorneys, and the litigation process itself. By the end, you’ll be equipped with the knowledge to effectively manage and resolve construction disputes, ensuring your projects stay on track and your interests are protected. 

Whether you’re a contractor, property owner, or industry professional, this guide will provide valuable insights into the world of construction litigation.

Key Takeaways:

  • Common Disputes: Breach of contract, defective work, delays, payment issues, and scope changes often lead to construction litigation.
  • Involved Parties: Property owners, contractors, subcontractors, architects, and engineers typically have conflicting interests.
  • Litigation Process: Involves filing a lawsuit, discovery, pretrial motions, trial, and appeals, requiring thorough legal preparation.
  • Alternative Dispute Resolution: Mediation, arbitration, and negotiation can resolve disputes faster and more cost-effectively than litigation.
  • Construction Lawyers’ Role: Attorneys help navigate the legal process, negotiate settlements, and represent clients in court.

What Is Construction Litigation?

Construction litigation is a complex beast. It’s the legal process that unfolds when things go sideways on a construction project. We’re talking breach of contract, defective work, blown timelines, and payment disputes—the sort of stuff that keeps contractors and property owners up at night. 

To better understand who can help navigate these turbulent waters, it’s useful to learn what a litigator is.

Types of Construction Disputes

In my experience, construction disputes come in all shapes and sizes. You’ve got your garden variety breach of contract claims when someone doesn’t hold up their end of the bargain. 

Then there are construction defect cases – think shoddy workmanship or materials that don’t pass muster. Delays are another biggie. When projects drag on past the agreed timeline, tempers flare and lawsuits fly. 

And then there are payment disputes. Cash flow is the lifeblood of any construction project. When the money dries up, things get ugly fast.

Parties Involved in Construction Litigation

Construction litigation is like a high-stakes game of tug-of-war. On one side, you’ve got the property owner who’s usually footing the bill. They expect top-notch work delivered on time and budget. 

On the other side are the contractors and subs doing the actual building. They’re trying to turn a profit and navigate a maze of moving parts. 

Then you’ve got architects and engineers in the mix. When things go off the rails, it’s often a battle royale to sort out who’s at fault.

Overview of the Construction Litigation Process

If you find yourself staring down the barrel of a construction lawsuit, buckle up. It’s a wild ride. The first shot across the bow is usually a strongly worded letter from an attorney. 

If that doesn’t get the other side’s attention, the next stop is filing a formal lawsuit. From there, you dive into the discovery process – trading documents, taking depositions, and building your case. Most cases settle before trial, but if you can’t strike a deal, it’s off to court for a throwdown in front of a judge or jury.

Common Causes of Construction Disputes

I’ve seen my fair share of construction disputes over the years. It never ceases to amaze me how many ways a project can go off track. In my experience, most disputes boil down to a few common themes.

Breach of Contract

This one’s a classic. The contract is the rulebook for any construction project. It spells out who’s responsible for what, how much they’re getting paid, and when the work is supposed to wrap up. 

When someone veers outside those lines, it’s a breach of contract time. I’ve seen cases where contractors used subpar materials to save a buck or took shortcuts that compromised the work. 

On the flip side, I’ve seen owners withhold payment over minor issues. The contract is king in construction law. Violate it at your own risk.

Construction Defects

Construction defects are the bane of any project. These are flaws or failures in the work itself – think leaky roofs, cracked foundations, or faulty wiring. 

Defects can range from minor cosmetic issues to major safety hazards. And they can pop up years after the job is done. 

In construction defect cases, the key questions are usually:

1) Is it a defect or just normal wear and tear?

2) Who’s responsible for fixing it?

3) How much will it cost?

These cases often devolve into battles of the experts, with each side trotting out their specialists to weigh in.

Delays and Scheduling Issues

Construction schedules are notoriously fluid. Weather, labor shortages, permit snags – you name it, it can gum up the work. When projects fall behind, it’s a mad scramble to get back on track. 

Owners are eager to start using or selling the property. Contractors are racing to avoid liquidated damages for blowing deadlines. 

Delays can quickly snowball into major losses for everyone involved. The trick is figuring out who bears the blame and who should foot the bill.

Payment Disputes

Money makes the construction world go ’round. When payments get hung up, the ripple effects can be devastating. I’ve seen subcontractors walk off the job when they don’t get paid, grinding the whole project to a halt. 

I’ve seen owners withhold funds over disputes about the quality of the work. Sorting out who owes what can be a legal labyrinth. 

Mechanics liens, bond claims, and other tools come into play to secure payment. But at the end of the day, someone has to open their wallet.

Change Orders and Scope of Work

Construction projects are like a giant game of telephone. What starts as one thing can morph into something entirely different by the time it’s built. Change orders are the mechanism for altering the scope of work mid-stream. 

But they can be a major source of friction. Contractors often argue they’re being asked to do extra work for free. Owners gripe that the charges are inflated. 

The scope of work in the original contract becomes a distant memory. Suddenly, you’re haggling over every nickel and dime.

The Role of Construction Lawyers in Litigation

When the you-know-what hits the fan on a construction project, it’s time to lawyer up. A good construction attorney is part advocate, part therapist, and part traffic cop. We help our clients navigate the legal labyrinth and come out the other side in one piece.

Representing Clients in Construction Disputes

Job one for any construction lawyer is to zealously represent our client’s interests. That means diving into the nitty-gritty of the project to understand what went wrong and who’s at fault. It means poring over contracts, plans, and correspondence to build the strongest case possible. 

And it means going to the mat in settlement talks or in court to get our clients the relief they deserve. We’re not just legal technicians. We’re partners in the trenches with our clients, fighting for their rights.

Navigating the Legal Process

Construction law is a niche unto itself. The rules and regulations governing the industry are a tangled web. A seasoned construction attorney knows how to cut through the noise and chart a course forward. 

We here at Kelly Legal Group help our clients understand their options and make smart strategic choices. 

Should you file a mechanics lien? Pursue arbitration or head to court? Push for an early settlement or dig in for a long fight? 

These are the kinds of judgment calls we make every day to protect our client’s interests.

Negotiating Settlements

Most construction disputes never see the inside of a courtroom. The vast majority are resolved through settlement – a deal struck between the warring parties to put the matter to bed. But getting to “yes” is an art form. 

It takes a keen understanding of each side’s leverage and a deft touch at the bargaining table. As construction lawyers, we’re often the ones driving the settlement bus. 

We help our clients weigh the costs and benefits of settling versus slugging it out in court. And we use every tool in our arsenal – from hardball tactics to creative problem-solving – to achieve the best possible outcome.

Preparing for Trial

When push comes to shove, some construction disputes have to be tried in court. It’s the last resort, but sometimes it’s the only way to get justice. As construction litigators, we live for trial. We relish the chance to tell our client’s story to a judge or jury and make the other side answer for their misdeeds. 

But trials are not for the faint of heart. They require meticulous preparation – lining up witnesses, honing arguments, and anticipating every twist and turn. It’s our job to make sure our clients are ready for their day in court.

The Construction Litigation Process

Litigation is not a one-size-fits-all undertaking. Every case is different, with its unique cast of characters and plot twists. But there are some common milemarkers on the road to resolution.

Filing a Lawsuit

Filing a lawsuit is the first step in the litigation process. The party who’s been wronged – the plaintiff – fires off a formal complaint spelling out their beef against the defendant. The complaint lays out the facts of the case and the legal theories that justify relief. 

Once it’s filed and served, the clock starts ticking. The defendant has a set window to respond, usually by filing an answer denying the allegations or mounting a counterattack.

Discovery and Evidence Gathering

Once the initial pleadings are squared away, the real fun begins. Discovery is the phase where each side gets to play Nancy Drew, digging for dirt on the other side. We swap documents, take depositions, and grill witnesses under oath. 

It’s a chance to test our theories, lock in testimony, and see what skeletons come tumbling out of the closet. In complex construction cases, discovery can be a slog – a paper chase with thousands of documents and scores of witnesses. But it’s a critical step in building a bulletproof case.

Pretrial Motions and Hearings

As the case marches toward trial, there is usually a flurry of pretrial motions and hearings. These are opportunities for each side to jockey for position and narrow the issues in dispute. 

Common pretrial moves include: 

  • Motions for summary judgment (asking the court to rule in your favor without a trial)
  • Motions to exclude evidence (keeping damaging material away from the jury)
  • Motions in limine (setting ground rules for trial)

The goal is to tilt the playing field in your favor and streamline the case for trial.

Trial and Verdict

If the case doesn’t settle, it’s time to put on your big boy pants and head to trial. This is the main event – a full-blown slugfest in open court. Each side gets to put on their case, call witnesses, and make arguments to the judge or jury. 

Trials are equal parts theater and chess match. You need a compelling story, an airtight legal strategy, and the ability to think on your feet. 

After all the evidence is in, the judge or jury renders a verdict – a decision on who wins and who loses. It’s the moment of truth that can make or break a case.

Appeals Process

If the losing party thinks the judge or jury got it wrong, they can file an appeal. An appeal is not a do-over. You don’t get to retry the case from scratch. 

Instead, the appeals court takes a hard look at what happened at trial to see if any legal errors were made. Did the judge botch an important ruling? Was the jury misled by faulty instructions? 

If the appeals court finds a problem, it can overturn the verdict, order a new trial, or even enter judgment for the other side. Appeals add time and expense to the litigation process, but they’re a vital safety valve for correcting injustice.

Alternative Dispute Resolution in Construction

Litigation is not the only way to solve construction disputes. In many cases, alternative dispute resolution (ADR) can be a faster, cheaper, and more flexible path to resolution.


Mediation is a type of guided settlement negotiation. The parties sit down with a neutral third party – the mediator – who tries to help them find common ground. 

The mediator doesn’t have the power to force a settlement. Their job is to facilitate communication, probe for hidden interests, and suggest creative compromises. 

Mediation can be a powerful tool for breaking logjams and getting deals done. And because it’s voluntary, the parties retain control over the outcome.


Arbitration is a bit like private court. The parties present their case to a neutral arbitrator (or panel of arbitrators), who renders a binding decision. Arbitration is less formal than court, with streamlined rules and procedures. 

It can be quicker and more cost-effective than litigation, especially in complex cases. The proceedings are usually confidential, which can be a plus for parties who want to keep their dirty laundry out of the public eye.

The downside is that arbitration decisions are very hard to appeal, so you’d better be sure you’re putting your best foot forward.


Never underestimate the power of good old-fashioned negotiation. Sometimes the best way to solve a construction dispute is to get the key players in a room and hash it out. Negotiation is all about finding the sweet spot – the deal that meets each side’s core interests while minimizing the pain points. 

It takes creativity, patience, and a willingness to compromise. But when it works, negotiation can be the quickest and most cost-effective path to resolution.

Benefits of Alternative Dispute Resolution

ADR is not a magic bullet for every construction dispute. But in many cases, it offers significant advantages over litigation:

  • Speed: ADR can be much faster than court, with less formal discovery and fewer procedural hurdles.
  • Cost: By streamlining the process and encouraging early settlement, ADR can save buckets of money in legal fees and expenses.
  • Flexibility: ADR allows the parties to craft creative solutions that might not be available in court.
  • Confidentiality: ADR proceedings are usually private, which can be a boon for parties who want to avoid airing their dirty laundry in public.
  • Relationships: Because ADR is less adversarial than litigation, it can help preserve business relationships that might otherwise be damaged by a scorched-earth court battle.

Of course, ADR is not always the answer. Some cases are too complex, too contentious, or too high-stakes for anything short of full-blown litigation. But for many construction disputes, ADR can be a valuable tool in the toolbox.

Recovering Costs in Construction Litigation

At the end of the day, construction litigation is about money. Someone’s been harmed, and they want to be made whole. However, recovering costs in construction disputes is not always a straightforward proposition.

Types of Recoverable Costs

In theory, the winning party in a construction case can recover a wide range of costs and expenses, including:

  • Attorney’s fees: The cost of hiring lawyers to prosecute or defend the case.
  • Expert witness fees: The cost of hiring specialized experts to testify about technical issues in the case.
  • Court costs: Filing fees, service of process fees, and other administrative expenses.
  • Damages: The actual harm suffered by the winning party, such as the cost of repairing defective work or the lost profits from a delayed project.

But recovering these costs is not automatic. In most cases, you need a contractual or statutory basis for shifting fees to the losing party. And even then, the court has discretion to decide what costs are reasonable and necessary.

Proving Damages

Proving damages in a construction case can be a complex and expensive undertaking. It’s not enough to say “I was harmed.” You need to show, with specificity, how you were harmed and how much it cost you. 

This often requires expert testimony from accountants, economists, and industry specialists. It may also require detailed documentation of costs incurred and opportunities lost. The key is to have a clear, well-supported theory of damages that can withstand scrutiny from the other side.

Mechanic’s Liens and Bond Claims

In construction, there are special tools available to help contractors and suppliers secure payment for their work. A mechanic’s lien is a legal claim against the property itself, which can be used to force a sale if the owner doesn’t pay up. 

A bond claim is a claim against a payment bond posted by the owner or general contractor, which guarantees payment to downstream subs and suppliers. These remedies have strict deadlines and procedural requirements, so it’s important to have a knowledgeable construction attorney in your corner. 

At the end of the day, construction litigation is a high-stakes game with no guarantees. But with the right legal strategy and a tenacious advocate on your side, you can level the playing field and get the justice you deserve. The key is to be proactive, be prepared, and never give up the fight.

Construction Litigation: Final Thoughts

Construction litigation is a complex and often lengthy process that can have significant financial and reputational consequences for all parties involved. By understanding the common causes of disputes, the role of attorneys, and the litigation process itself, you can better protect your rights and interests in the face of a construction conflict.

Catching construction issues early and using alternative dispute-resolution techniques can often keep things from getting out of hand. However, when a lawsuit is the only option, having a seasoned construction attorney in your corner is crucial to understanding the legal ins and outs and securing a positive result.

Construction litigation can be a real headache, but don’t let it get you down. Stay on top of your game by keeping detailed records and communicating clearly with your team. If a dispute does arise, having a solid legal partner in your corner can make all the difference.

Be proactive, stay informed, and keep your eye on the prize – a successful construction project from start to finish.

For more information or if you need to speak with highly experienced and qualified construction attorneys, contact Kelly Legal Group today!