For lawyers, serving as a juror is somewhat of a leprechaun moment. But as of January 1, 2023, in Arizona, the Arizona Rules of Civil Procedure no longer permit trial counsel to exercise peremptory challenges — meaning lawyers cannot freely strike whichever jurors they believe are adverse to their position. So, despite being an attorney and having participated in construction litigation (both for plaintiffs and defendants), I was seated as a juror in a nearly month-long construction trial.

Construction litigation is a deceiving niche for trial practice. As a law clerk, I watched civil trials in federal court, and none of them required the same step-by-step dismantling as construction litigation. As a juror, I initially found myself trying to intuit the answer — who is responsible for what? How should the project have been constructed? But in practice, the lawyers demonstrated that construction is guided by a peculiar set of norms, specific standards, and contractual boundaries, not all of which are obvious to the average (or not-so-average) juror.

From this experience, not only did I learn some practical tips for lawyers (which I’ve included), but there’s a lot a client can do to help the lawyers along the way.

For Clients consider the following:

Hire good people.

Some of the most persuasive witnesses throughout trial were those who were out on the job every day doing the work. Although experts are helpful, and at times necessary, to provide key testimony and to complete your case, your employees know their jobs inside and out. When your people are hardworking and honest, that candor comes through on the witness stand. This also works in reverse. When you hire shady characters, the jury will notice.

Draft carefully from the outset.

Scopes of work are everything. As a juror, a scope of work functions as a rubric: did you meet the expectations of the contract? If we know exactly what was agreed to, it is much easier to parse out which portions of the contract, if any, went unfulfilled. It should go without saying that all scopes of work should be memorialized in writing and signed by both parties.

Scopes of work benefit everyone. As the party doing the work, an accurate scope of work can protect you from later liability. On the other hand, if you are the one contracting to have the work done, scopes of work serve as a checkbox to ensure you’re getting what you paid for.

As an additional consideration, contractors should also take care to note in their contracts potential issues that are outside their scope of work. This delineation is often difficult to make, but the upfront work can benefit everyone in the long run.

When I was a juror, a significant portion of the contested issues occurred on the perimeter of the contractor’s work. So, for those of you drafting the scopes of work, consider who is responsible for any issues performed at the juncture of your specialty. For example, in a roofing project, delineate who is responsible for the adjacent stucco walls, the roof drains, or the scuppers. Or in a landscaping project, allocate responsibility for water damage at the bottom of the stucco, or the cracked concrete on the sidewalks.

While these juncture components may seem intuitive to an experienced employee or business owner, they are not intuitive to a jury. This becomes especially complicated when your business could perform the necessary work at the junctures but, for whatever reason, did not contract to do so. Not delineating — or excluding — these portions of work from your scope can leave a project looking unfinished through no fault of your own. A disclaimer in your contract that the company has not agreed to complete any work at the exterior of the project, including [insert areas here] can help a jury confidently allocate responsibility for allegedly unfinished work.

For lawyers consider the following:

Spell it out — literally.

At the beginning of trial, I struggled with terminology. The lawyers were so well-versed in the issues that they used the jargon freely — and assumed the jury knew what they meant. Your jurors are laypeople, and even when they aren’t, they’re starting from scratch. I’m a visual learner, so for me, it would’ve been helpful to see the words along with a photo of what was being described. If the jury does not understand you, you are less likely to persuade them.

Bring physical exhibits.

One of my favorite parts of trial, especially a long one, was physical exhibits. Every now and then the lawyers would produce a demonstrative item akin to a sample sheet in a sales meeting. The physical exhibits helped bring the defects to life, meaning we could better envision the construction issues at stake. If your trial has to do with defective caulking, bring in a caulking sample and let the jury touch and feel the difference. It sparks engagement and understanding. Similarly, experts that can stand up, draw, point, circle, and break apart the stages of a construction matter can be more persuasive and help the jury follow along.

Conclusion

Construction litigation is a team effort. On the front end, clients can help prevent issues by preparing a good contract, keeping good people close, and being meticulous about scopes of work. In the event of litigation, lawyers can help by slowing down and teaching the jury about your specialty from the ground up.