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April 2012 Archives

Construction Litigation: You Are the Expert

Sometimes I get to trade my high heels in for boots and a hard hat when visiting construction clients at the job site. Those are always fun days for me. When I was a "baby" lawyer, I got the privilege of visiting a construction client at a job site at the DFW airport. While the firm had its own hardhats which sported the firm logo, the client asked us to wear their hardhats so as not to alert everyone that the lawyers were on site. Construction litigation can involve all different types of disputes. Often construction litigation attorneys spend a great deal of time working with, deposing, and trying to either qualify or disqualify potential expert witnesses. Expert witnesses possess "scientific, technical, or other specialized knowledge" that will assist the judge or jury to understand the evidence or to determine a fact. Tex. R. Evid. 702. How can one be an expert witness? A witness can qualify as an expert by "knowledge, skill, experience, training, or education." Tex. R. Evid. 702. Often construction clients themselves qualify as non-retained expert witnesses, which makes sense--they know how to build houses, pour concrete, install a roof, pour a foundation etc. They have this specialized knowledge from their experience and training. Sometimes a lawyer's client is overlooked as an expert because they don't hold a certificate or a certain degree. However, that doesn't preclude them from being an expert. For example, when it came to sewer repair work and cementitious products, there was no one more experienced with or having more specialized knowledge than a recent client of mine, even though he didn't hold a particular degree from a college or university.

Arbitration

I am a trial lawyer, a civil litigator. Sometimes I get asked if that means that I handle arbitration disputes as well. It does. What is arbitration? How do you get there? How does it differ from a state or federal court litigation? Arbitration has been described as "[a] contractual proceeding by which the parties to a controversy or dispute, in order to obtain a . . . final disposition of matters involved, voluntarily select arbitrators or judges of their own choice, and by consent submit the controversy to such tribunal for determination in substitution for the tribunals provided by the ordinary processes of the law." Alderman v. Alderman, 296 S.W.2d 312, 315 (Tex. Civ. App.--San Antonio 1956, writ ref'd)(quoting 6 C.J.S. Arbitration and Award § 1). So to have an arbitration the parties must have contractually agreed that they would submit a dispute to the arbitration process. I have seen countless arbitration contracts. Some contracts specify who is going to manage the arbitration--like the American Arbitration Association "AAA," FINRA or Judicial Arbitration and Mediation Services "JAMS." Some contracts specify how many arbitrators there will be and how they will be selected. There are specific rules that have to be followed based upon the contract and which arbitration management organization is specified for the arbitration. How does arbitration differ from state or federal court litigation? Depending on the terms of the contract or the management organization, an arbitration is heard by an appointed "arbitrator" or "arbitrators." Depending on the contract and the rules, the arbitrator(s) may or may not be lawyers, or even people familiar with the exact type of dispute. Typically, the rules of evidence (which govern what types of documents and testimony are admissible in a state or federal trial) are suspended. Cross and direct examination of witnesses are also more casual with the arbitrator(s) sometimes asking their own questions and leading the testimony into areas that interest them. There are many possible differences between arbitration and state or federal court litigation, and as a civil litigator it is one of the exciting challenges of my practice.

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