One of the least understood aspects of the litigation process is the litigation process. On the one hand, clients who ask that suit be filed against a defendant, believe that the case is inexorably and irrevocably going to end up at a trial at some point in the future. Then again, there are clients who believe that the act of filing suit will produce a check in the next week or ten days. On top of that, concerns over cost near and dear to every client's heart cause many clients to either not prosecute their rights, pick the wrong kind of lawyer or be left with the feeling that they paid too much irrespective of whether or not a favorable outcome was achieved in the litigation. It's an old joke among lawyers who try cases that obtaining their final payment is not at all dissimilar from a contractor's attempts to obtain his retention. For, if the client wins the case, his attitude is: "I won the case, I didn't need you." And, if the client loses the case, the client says: "Why should I pay, I lost the case?".
Inasmuch as there are numerous different trial courts and systems, including administrative forums such as the American Arbitration Association, the intent of this article will be to essentially homogenize court experience State District Court, State Superior Court and Federal District Court with an emphasis on the State Superior Court, inasmuch as most construction cases get filed in the State Superior Court.
Preparation for Litigation
To a great extent, this applies to preparing for a case in which your company is going to be a plaintiff. At the same time, following many of these suggestions will enhance your company's position in construction litigation over claimed breaches, extras, differing site conditions and other subjects. Please note: no amount of preparation is going to assist the defendant in evading responsibility for paying a bill that he actually owes!
That bears repeating. Despite what one reads in the popular press, litigation over construction contracts is not some kind of process involving "hocus-pocus"! There are elements of "hocus-pocus" involved in the trial of criminal matters and in the trial of negligence matters. The thrust of a criminal matter is for a prosecutor to prove his case beyond a reasonable doubt. What constitutes a reasonable doubt may be a matter that is capable of a difference of opinion among reasonable people.
Attempting to establish whether or not a party has been negligent breached a duty to another person, causing damage is again a matter calling for a judgment upon which reasonable people could differ. From our own files, you be the judge! Is the manufacturer of a circular saw liable for negligence when the switch on a twenty-one year old saw which has been handled and stored rather carelessly fails, causing personal injury? Should the manufacturer of an above ground pool be liable for serious neck injuries when a grown man who has had a few drinks dives into the pool, breaks his neck and the pool has several "Do Not Dive" labels firmly attached to the pool liner? Should a construction worker be entitled to compensation when he electrocutes himself (but not fatally) incurring great physical injury and damage when he is attempting to steal copper buss bar which he thought had no current passing through it?
Then, there are cases from the newspaper. Should an eighty-year old woman recover two million dollars from McDonalds because she claims not to have known that coffee is hot?
The point is that in criminal cases and in negligence cases, the trier of fact usually a jury comes up with an answer on a case-by-case basis which other reasonably-minded people could disagree with. This uncertainty puts the 'rock' into rock and roll.
Actions involving construction contracts are contract matters. The contract between the parties defines what the parties' rights and liabilities are going to be. This is one of the principal reasons why lawyers usually do not choose a jury in a construction matter: there really is not a factual issue that reasonable minds could differ on. For instance, if the contract calls for the installation of a certain number of widgets for a certain set price, the contractor will be liable in damages for not installing widgets and will be entitled to recover the contract price for the installation of the widgets. It is true that sometimes factual issues can enter into these discussions. For example, if the contractor properly installs the widget and the widget either fails or is not the proper mechanical device for the desired installation, is the contractor liable?
In the main, however, there is not as wide a range of possible outcomes as there would be in either a criminal matter or a negligence matter. The significance of this point is that when you are attempting to decide whether or not to perform an act (or not perform an act) and consider the ramifications of such performance (or non-performance), common sense and predictable outcomes are more likely to be found in contract litigation than in other forms of litigation, such as in criminal and negligence litigation. All this is is a long-winded way of saying that it is less likely in construction litigation that even the best lawyer will be capable of turning an apple into an orange (or a sow's ear into a purse). So, one of the first things to have in your frame of reference when evaluating the suitability of litigation as a possible mechanism for a particular job is that outcomes are more likely to be predictable in contract litigation than in other forms.
Since no contractor really knows which of its jobs is going to go to litigation, following a few simple rules will put that contractor in the best possible position when one of those jobs ends up in litigation.
In construction litigation, there are several things which can be very helpful for the successful trial of a case. The following suggestions apply more in claimed breach litigation than in mere collection cases.
Initially, a good and detailed set of superintendent's daily reports is very important in construction litigation. Having done this for a while, we are equally aware of the fact that good daily reports are something that are hard to obtain from superintendents who are busy and--more accurately--simply do not wish to prepare them. The point is that daily reports are what are called in the law "business records" and can go into evidence as to all matters contained therein. Such facts could include how many men were on a job on a particular day for a particular subcontractor or for the general contractor. What the temperature and the precipitation was on a particular day also can go into evidence directly from the daily reports. (This type of information can be very significant in claims involving delays, job interruption, requested time extensions and claims involving multiple mobilizations and re-mobilizations.)
Since very few contractors in our experience properly handle issues pertaining to extra work--obtaining change orders before performing that work, as an example--indicating on a daily report the hours of labor attributable to a claimed extra work item including detailing what materials were used for the extra work item can be very important in future construction litigation.
If a picture is worth a thousand words easily the case in construction litigation a video recording as to issues pertaining to differing site conditions and delays can be worth one hundred thousand words. Really, taking pictures and making videos is a simple proposition and only involves the discipline of doing it. In our practice, we have encountered one particular general contractor who makes it a point of making a video tape of each of its jobs once a week. Those videotapes clearly and consistently demonstrate what the status of a particular job or trade is as of a particular date for better or worse. So, for example, if one is attempting to defeat a claim for delay, having evidence such as pictures and videos (even better) demonstrating the level of preparation of dependent or subsidiary trades as of any particular point in time can be very important and useful for purposes of trial and litigation.
Let's define some terms. The terms 'trial' and 'litigation' refer to two entirely different matters. Litigation is the process of handling a formalized claim upon which suit has been filed or arbitration demanded. The litigation process is the lengthiest portion and the most expensive portion of the average court case. Keeping in mind that recent statistics suggest that ninety-two to ninety-six per cent of all Superior Court civil cases are resolved short of a complete trial, as a matter of statistics, the average case is not likely to go to trial. For example, in our experience, having filed hundreds of payment bond cases, we have never actually tried a case against a payment bond. Insurance companies are professional risk managers, meaning, in other words, that they manage money. Despite the fact that an insurance company can and will give a payment bond claimant a run for its money, the larger and more reputable insurance companies go to trial rather rarely on this type of claim. Generally speaking, the cases which actually get tried go to trial are those cases where either one or both of the parties view (or price) the case unrealistically or where the defendant, not planning an imminent bankruptcy, simply does not have the money to pay the claim.
Two more items to comment on within the category of preparing for potential litigation.
First of all, all of our faithful readers who are 'contractors' raise your right hands now! Do not feel silly: we will know! We have spies everywhere!
The root word of 'contractor' is the, uh, 'C- word'. Contractors are not afraid of the rigors of competition. They are not afraid of the rigors of any particular job, as hazardous as contracting activities often can be. What they are afraid of is paperwork and the"C- word", which is, after all, the root word of the word 'contractor'.
For any construction contracting activity of any significance, a contractor should have a written contract. That bears repeating. For any construction contracting activity of any significance, a contractor should have a written contract. For any construction contracting activity of any significance, a contractor should have a written contract. For any construction contracting activity of any significance, a contractor should have a written contract. Can you sense a pattern forming here?!?
Keep in mind that a written contract does not have to be a fifty page AIA or AGC form. A contract is simply one or more pieces of paper signed by the two parties to the contract (the parties to be charged with the endeavor) fundamentally stating the scope and price of the activity. For most construction contracts, this could be summarized in one or more paragraphs. And, from a legal standpoint, what constitutes an actual 'contract' is not the title of the document. Court cases have found that a letter of termination could actually be the final document indicating the existence of a written contract. Some industries-such as the trucking industry-have problems obtaining written purchase orders. This is also quite prevalent among our equipment rental companies and some material suppliers, particularly with regard to concrete. What we recommend to our customers is to give their customers/clients documents titled "Order Acknowledgment" with other similar relatively innocuous titles. For, if the document is signed by the parties to be charged and contains the scope and the price, whether it is labeled "Purchase Order," "Contract," "Order Acknowledgment," or something else will be irrelevant.
Additionally, with regard to a written contract, in order to even have a remedy -- to be able to sue -- under some circumstances, one needs the written contract. The Uniform Commercial Code states that an oral contract for the sale of goods in excess of $500 is unenforceable. Massachusetts statutory law states that any contract that cannot necessarily be performed in one year or less is also unenforceable in the absence of a written contract. Under Massachusetts law, no mechanic's lien can be filed in the absence of a written contract. (This is the number one reason why potential liens brought to the Law Offices are not filed.) While a written contract may not be strictly necessary for the purposes of collecting against the payment bond, the absence of a written contract can prolong the case inasmuch as it is a common practice for creditors to "load up" unbonded jobs with bills from bonded jobs and the bonding company was not born yesterday.
Lastly, in terms of preparing for litigation--and a goodly portion of our litigation is chasing changes, extras, delays and differing site conditions-getting written evidence of a change or factors leading to a delay is an absolute prerequisite to litigation on these matters, completely apart (and in addition) to what the changes clause in your contract may provide. Now, we can hear vibrations through the paper that you are reading: "But I never get written directions to do extra work". Or, "They won't give me that paper even if I were to ask for it."
While we can never with good conscience advise contractors not to follow the express written direction in your contracts for how to give proper notice and pricing information as to suspected/requested changes, if you don't want to/can't go to the full extent of what is required, as in other areas of your life, something rather than nothing, if not sufficient, might be helpful.
Thus, if you are directed to do changed work or extra work but your contracting party fails/refuses to give written direction of that fact, please keep in mind that there is Massachusetts case law that says that a general's superintendent does not necessarily have inherent authority to create/order changes in construction subcontracts. Therefore, if for some reason you can't/won't follow the changes procedure in the contract, send a fax (if your machine produces good transmittal reports) to the project manager/officer/owner of your contracting party advising that you have been directed to perform extra work, that it will cost this, that it will be performed on such and such a date and that if you have any of this wrong, for them to send you a fax within the next two or three business days. That is not perfect but creates a situation where the other side if it fails to contradict your fax creates a situation where it may have "waived" or be "estopped" to later claim that it did not authorize what was described in your fax. For, the law imputes an obligation to take the action that a reasonable man would take in any set of circumstances. Remember the old saw: "You shot your wife"! Not denying that assertion can be seen in certain judicial processes as an admission of that fact.
In summary, in talking about preparation for possible and future litigation. You want to make sure that you have a written contract or some group of documents that will indicate fundamental assent as to scope and price signed by the party to be charged - that's you and the party you intend on suing. You have some form of written memoranda as to changes and differing site conditions. You have some form of superintendent's daily reports. (If your super has time enough to drink four cups of coffee a day, he has ten minutes to write up reasonably decent daily reports--or don't pay him.) Lastly, you have pictures, videos and other forms of demonstrative evidence that document your problem.
Now, it is time to go into the lower levels of the Inferno ...
The Litigation Process
First of all, the deadlines for most key events in a Superior Court case are established by a computer according to certain formulae. The Superior Court computer thinks that construction cases are on the slowest of the three available tracks the so-called 'average track'. Some lawyers attempt to speed up the procedures of a Superior Court case by coding construction cases as "service, labor and materials" this is a fast track or one year track case. The editors believe that one does this at one's peril inasmuch as clearly contract cases, construction cases and cases against payment bonds are specifically designated as being three year or average track cases.
A case commences by the filing of a complaint which is a list of the charges and claims by the party feeling it is aggrieved. This should be prepared by an attorney, as there are numerous substantive and procedural requirements necessary to frame a complaint which will survive a motion to dismiss. At such point as this document is served upon the defendant the party being sued that party has twenty days to file an answer to the complaint in writing and file the same with the Superior Court. Failing to do so means that the plaintiff on the twenty-first day can apply for a 'default', which is a ministerial act performed by the clerk's office not by a judge meaning that no longer can the defendant contest liability. At the point that a defendant has been defaulted, the only remaining issue is what amount of damages the plaintiff is entitled to.
While it is possible to set aside a default for good cause, many judges take the position that a defendant seeking to set aside a default must demonstrate that there is, in fact, a triable (genuine) issue of material fact and/or of law. This is not something that a defendant has to do in filing an answer. Technically, the rules require a defendant (and his/her/its attorney) when filing an answer to demonstrate that there is an actual genuine issue of material fact and/or of law: in other words, that the defendant does not owe the money for some reason. It is for this reason that it is a good idea to make sure that the answer is filed in twenty days.
At the time an answer is filed, a defendant must file a counterclaim which arises out of the same transaction. Example. Subcontractor sues general contractor for work on a certain subcontract. If the general contractor has a claim against the subcontractor for the very same contract, this must be asserted either with the answer or within the next twenty days after the answer has been filed. Otherwise, such a 'mandatory' counterclaim is waived.
At the time of filing the answer, a defendant may also-but if not required to-file claims against the plaintiff which do not refer to the matter that the plaintiff has filed claims on. Thus, for example, if the plaintiff sues on "Job A", the defendant can--but is not required--to file a counterclaim for its claims on "Job B".
At the time a defendant files its answer, a defendant may then file a 'third party complaint' as to any other party who may possibly owe some responsibility for the plaintiff's claim to the defendant.
This initial stage of the proceedings where the respective claims and defenses to the claims are asserted by and among various parties to the litigation--the so-called "pleadings stage"-achieves the purpose of setting forth before the court what the claims and the defenses to the claims are going to be.
The Discovery Phase
The next part of the case and, ordinarily, the most expensive part of the case--is the so called "discovery phase" of the litigation process. It is during this phase that the parties to the litigation attempt to develop witnesses, evidence, facts and documents which pertain to the claims and the defenses to the claims. There are several discovery mechanisms. The first is for one party to ask written questions of the other party which have to be answered by that party under oath. These are called interrogatories. Knowledgeable attorneys have so-called "pattern interrogatories" for a wide variety of cases they customarily handle, which should mean that the cost of propounding this kind of discovery on repetitious-type cases should be somewhat less than doing it for the first time.
Ordinarily accompanying a set of interrogatories is a set of document requests. Massachusetts practice rather liberally allows a party to look at the other party's documents pertaining to the claims and defenses involved in the litigation. This form of discovery--as pertains also to the other forms of discovery--does not necessarily refer or limit itself to only documents or facts or evidence which are exactly legally relevant to the issue at hand. The standard for most discovery is that the discovery is 'reasonably calculated to lead to the discovery of admissible evidence'. This is a rather broad standard and is ordinarily broadly interpreted by both state and federal court judges in favor of the requested discovery.
Sometimes, a party may not wish to part with a certain fact or document, such as, for example, an estimate for a job. During the course of a case, there can be some discovery as to the defendant's possible ability to pay a judgment. Again, a defendant may not wish to reveal this type of information. This reluctance-when forced-helps to settle cases.
A particularly effective but under-utilized discovery/trial limitation device is "requests for admissions". With this discovery/trial limitation device a party can ask another party to either admit or deny certain stated facts are true. A party can also ask another party to acknowledge the genuineness of documents, signatures and attached copies. Requests for admissions are under utilized in most litigation. They have certain very key advantages. Unlike interrogatories, which cannot exceed thirty in number, a party can request an unlimited number of requests for admissions of the other party. Secondly, requests for admissions have to be specifically signed by the party- not only by the attorney. This forces the party to get involved in the case--important for concluding litigation matters--and to sign the requests for admissions under the pains and penalties of perjury. While people do lie in life, it has been our experience that people do not care to lie in court documents and proceedings because of the threat of prosecution of perjury.
Lastly, requests for admissions have an advantage inasmuch as the facts are taken as admitted within thirty-three days of service of the facts. A party who submits interrogatories cannot get any benefit from the party served with the interrogatories without filing some form of motion/paper to compel or requesting other court action. Similarly, a party not producing documents has nothing bad happen to it/its counsel/its case until such time as the propounding party takes an additional action. Requests for admissions are unique in that the matters for which admissions are sought are automatically deemed to be admitted within thirty-three days of service. Many counsel do not know this and find themselves in a situation somewhere down the road with having to deal with all or many key elements of the other party's case already taken as admitted for the purposes of the litigation. This also helps settle cases!
As part of discovery devices, under certain circumstances, a party can move for permission to inspect physical things, including going onto land for making various observations, measurements, etc. Not germane to construction litigation, but oftentimes in personal injury litigation a party can move for a court order to have an important person in the case--usually the defendant--examined by one's own physician as to claimed physical and mental problems.
An overused discovery device--extremely expensive, at that--is to take the deposition of a person or of a party. A party can take the deposition of a party to the case or a party can take the deposition of individual people by serving upon the counsel of record notices of deposition. In a deposition procedure, the attorney calling for the deposition can literally ask questions of the person being deposed until he/she runs out of questions! We have sat through any number of depositions which rather conveniently lasted eight hours even though all of the important questions could have been asked in one or two hours. Keeping in mind a lawyer's hourly rate as well as a certain amount of time to prepare for the deposition and increasingly high transcript costs (six or seven hundred dollars per day) one can see where the use of depositions in litigation--often required for more complicated litigation--adds to the price of the litigation. Yet, depositions frequently can be used/are used to put cases away. For example, the only significant legal issue in an indemnity agreement case by a surety against an indemnitor is whether or not the person's signature on the indemnity agreement is genuine. Once that fact is established by admission, by answer to interrogatory or by a deposition answer, the case is ripe for summary judgment- discussed later. Sometimes, people who have made inconsistent (false) statements prior to deposition will refuse to go to deposition because they are not willing to lie about the subject matter of their prior statements. We have seen many cases that have ended because of the fact that a party witness simply refused to be deposed and therefore, had to settle his/her case.
Unfortunately, to obtain information from non-parties--outside witnesses, experts, etc.- deposition may be the only available discovery device inasmuch as requests for admissions, requests for production of documents and interrogatories are solely devices to be exercised between and among the actual parties to the case: the plaintiff, the defendant, the third party defendant, etc.
In the Superior Court, the discovery phase of the typical construction case lasts for about two years. Thus, two of the three years scheduled for a Superior Court case in a construction matter are dedicated to pre-trial preparation which is, substantially, devoted to investigation of facts and documents--the discovery devices outlined above.
Mediation/Conciliation
At some point-and this differs in the different counties-a court may call upon the parties to submit to conciliation or to mediation. Conciliation is a process whereby a lawyer, usually working for nothing as a court functionary, will sit in a conference room and hear from each party as to that party's claims and defenses. A conciliation ordinarily will last no more than one hour. The conciliator may offer his/her opinions as to claims and defenses but will not--usually--exert much pressure/emphasis in trying to settle a case. During the process of conciliation, which usually preceeds the pretrial conference, the conciliator will be filling out a form attempting to limit what the issues may be and in order to advise the court of, for example, how much trial time might be required for the case. By our experience, some cases settle at the conciliation process but not nearly as many cases as are settled at the mediation process. Ordinarily, a mediator is paid by the parties. (There is no charge, generally speaking, for a conciliator, who is a court-appointed functionary.) The average mediation takes three to four hours and the average mediator would charge $150 (plus or minus) per hour for that service. Therefore, each party to the mediation is going to pay something in the vicinity of $225 to $300 for the mediation which is fairly inexpensive when considering what the numbers are for other aspects of the litigation process. Also, usually the parties have some choice in who serves as the mediator. Sometimes--and in some counties--the mediator will only be someone who all of the parties agree to. Some mediation services are composed of retired judges. Using a retired judge has some advantage if one wants to make a genuine effort at settling the case inasmuch as most lawyers are reasonably respectful to (and somewhat intimidated by) judges in front of whom they have appeared. Ex-judges have an ability by their former pomp and circumstance to ride herd over difficult lawyers and difficult clients to a greater extent than do lawyers who sit as mediators.
Whereas the conciliation process almost always takes place in an uncomfortable and small conference room in a court building-not conducive to long meetings-many mediations-but not all of them-take place outside of the court building and in either the mediation service's conference rooms or in a lawyer's conference room.
In the mediation process, any party can stop the process at any time and force the court to conclude, try or otherwise dispose of the matter. Things which are said in mediation are not evidence in the future litigation and all communications with the mediator, including all of his or her oral and written statements, are specifically prohibited from future reference or inquiry in the litigation if the matter does not settle.
The mediation process itself is rather simple. Each party makes a statement of what its position is with regard to the matter in controversy. Some mediators require briefs and others do not. Usually, after the initial exchange of positions the mediator will begin meeting privately with the individual parties inquiring more closely as to what a party's contentions really are and what a party's interest in and ability to contribute to a settlement. These discussions are considered confidential unless the party agrees that the information which is gleaned or initial positions taken can be exchanged with the other side. After a series of meeting between the parties individually, at some point the parties may get together to put the finishing touches on what the settlement is that they have agreed to. That is the key element of mediation. The parties determine what the settlement will be--not the mediator. The mediator may make suggestions but whether or not a settlement is reached and what the terms of that settlement might be is something that is solidly within the purview and control of the clients.
We have seen many difficult cases settled in the mediation process. The mediation process usually takes place within the context of the court case during the last half of the case-possibly, during the last quarter of the case. By this point in time, the pleadings have been closed (completed). And, by this point in time, most, if not all, of the discovery has taken place and the parties know about as much as they are going to know at the time that the case actually gets tried. Since the mediation process often takes place within a month or two of actual trial, the parties at this point in time are viewing their positions a little more soberly than they often do earlier in the litigation when bravado, unrealistic expectations and enthusiasm are more prevalent. By the time the case is two years old, the parties have begun to tire of it, its procedures, the lawyers and the cost. This is why the mediation process tends to work because it tends to be a process of conciliation rather than adversarial in nature and occurs at a time in the case when the parties are, quite frankly, beginning to get tired.
What the parties agree to in mediation is usually formalized in some form of paper filed with the court, which is typically an agreement for judgment.
Of the various counties in eastern Massachusetts, Middlesex Superior Court is probably most aggressive about using the mediation process. Every case will be called in at some point in time through the auspices of the court for evaluation as to possible evaluation of alternative dispute resolution (ADR) procedures, of which mediation is one. Our sense is that Suffolk Superior Court is getting more interested and busier in pre-trial screening. Norfolk seems to conciliate to a great degree as does Essex Superior Court as well.
The Summary Judgment Motion
After the pleadings have been concluded and after all or most of the discovery is done, the next step in the process is to try to evaluate the case as to whether or not a trial is, in fact, necessary. Parties have an opportunity to file what is called a motion for summary judgment, which is an attempt to consider the sufficiency of the case based on affidavits and briefs. The advantage of using the summary judgment procedure is that if the case is appropriate for summary judgment, further pre-trial and trial expenses are avoided. The key idea to keep in mind for summary judgment is whether or not there are outstanding any genuine issues of material fact. There are two key words in that last sentence. The first key word is 'genuine'. That means that there is a real issue as to a specific fact that is important for the decision of the case. The second key word in that sentence is 'material'. The idea of a material issue of fact is an issue that pertains to the very basis of the claim or the very basis of the defense. Every case has disputed factual issues. A material factual issue is a factual issue necessary to either establish a prima facie (on its face and legally sufficient) claim or defense to the claim.
In the event that there is a genuine issue of material fact, the judge considering the motion (no testimony, only submitted papers) is obliged to deny the motion for summary judgment. Indeed, the cases interpreting the summary judgment standard state that an opposing party to a motion for summary judgment needs only a 'toehold' to avoid the issuance of summary judgment against it.
Most cases by a surety against indemnitors are resolved at the summary judgment stage. Also, where a particular legal fact or defense is sufficient to knock out a plaintiff's claim, motions for summary judgment are an appropriate vehicle to test the sufficiency of a claim or of a defense to a claim.
There are other mechanics involved in filing for summary judgment. Very aggressive attorneys will seek to move for summary judgment in an effort to either get summary judgment, force a settlement or get the case assigned to a trial somewhat quicker. For, judges hearing summary judgments sometimes will place a case on an earlier trial list than would otherwise be the case as a kind of consolation prize for not issuing summary judgment. Of course, filing summary judgment in a marginal case might cause the party opposing the summary judgment to seek to settle the matter at that time because there is a certain expense involved in preparing the various papers that are required to oppose a summary judgment motion, including detailed affidavits and briefs, which are papers prepared by lawyers indicating the legal reasons why something should or should not happen. Sometimes, in order to better one's position in resisting the summary judgment motion, a party might make a partial payment on a disputed claim as to that portion of the claim which is not disputed. A court has an inherent authority rarely exercised after considering the summary judgment motion to make decisions limiting the further issues for trial of the case. Courts seldom do this as in the Superior Court system, judges are rotated in and out of sessions and in and out of different courts on a regular basis. There simply isn't the incentive nor the time for a judge to attempt to parse through the pleadings, discovery responses and four to six inches of briefs and affidavits in an effort to limit the future trial issues but not decide the case at that point in time. Lawyers believe whether it is completely true or not the judges are evaluated by their supervisors on how many cases they conclude each month. While limiting the issues for a case at trial may save many days of trial for the ultimate trial judge, under such a system of evaluating a judge's performance, there would be little incentive to do so.
On top of that, contractors need to keep in mind that construction cases are generally greatly disliked by trial judges. In fact, Suffolk Superior Court used to have a specific list of construction cases, segregating them from their list of other civil cases. Construction cases are disliked because they are extremely detail-oriented, require an inordinate amount of time to try and are, quite frankly, boring (from a judicial standpoint). Judges hate to tie up juries on construction cases. This is because judges are concerned that a court will "lose the jury" to the sheer length, detail and boredom created by a construction case.
What might be of value for the reader to keep in mind is that with construction cases in Superior Court, perhaps more than with other types of cases, there will be some pressure by the Court to:
- not send the case to a jury;
- exhaust all possible methods of ADR; and,
- to settle the case on some basis.
The Pre-Trial Phase of the Case
The next step that takes place in the usual process of the trial in the Superior Court is that the case will be scheduled for a pre-trial conference at which time the actual trial date will be set. Before one gets one's pre-trial conference time, ordinarily the parties have to prepare a rather lengthy pre-trial memorandum, which gets filed before the actual conference. The ostensible purpose of the pre-trial memorandum is to get the lawyers talking something lawyers often have difficulty in doing one to the other and to, again, evaluate the possibility of settlement. Also, what is required in a pre-trial memorandum can often be time-consuming to prepare and offers additional incentive to parties and to especially the lawyers who have to prepare them to look into other possibilities of settlement.
An ordinary pre-trial settlement memorandum will require the following:
- any stipulations of fact which can be agreed to in advance;
- a concise summary of each party's factual contentions;
- a statement of the disputed issues of fact and law as to each party;
- names and addresses of prospective witnesses including a description of what the expert witnesses are likely to say and what the individual fact witnesses are likely to say;
- a list of exhibits which are going to be offered into trial numerically numbered with indications as to which exhibits will be accepted without objection and which exhibits will be objected to by one or more parties;
- a list of any pending motions or other motions which may require action before trial; and,
- an estimate of the probable length of trial.
The average pre-trial memorandum will include at least those items. Since all of the counties use slightly different forms, it may be that additional information may also be required. Most of the pre-trial orders specifically require the counsel to meet prior to filing the pre-trial memorandum to see to what extent settlement is possible. Preparing this memorandum is going to require several hours of a lawyer's time.
Again, at the pre-trial conference, the judge is likely to inquire as to whether or not the case can be settled and what efforts have been extended in that direction.
At the pre-trial conference, usually not always a 'firm' trial date is established.
Now, for the uninitiated, a "firm trial date" is more laughable than your check being in the mail, your not having done something with someone and President Clinton's admiration of women but always and only from a discrete and respectful distance!
For, there is simply no way of knowing when a case is going to get reached for trial. This is for two reasons. First of all, it is not uncommon for judges to schedule as many as five (or more) trials for the same day based on the expectation that some of them will settle and for one reason or another someone will seek a continuance of the other trial dates (which continuances are not easily given). And, a particular session's being available on any given date assumes that the cases called on the previous days have themselves been resolved. This leads to the unenviable position where parties and their attorneys have to prepare to get ready to try a case on a certain day, send out subpoenas (expensive, having to be served by constables), annoying all of the witnesses and disrupting their lives, only to find out that on the so-called 'day of trial', the Court is not ready. This can happen many, many times and it is something utterly beyond the control of the attorneys.
Trial of the case
Assuming you have gotten this far, your case is going to actually get tried. The case will be tried in front of either a judge sitting in a jury-waived session or in front of a jury which will act as the fact finder. In either case, the attorneys make opening statements, present witnesses, cross examine witnesses, introduce evidence (both testimonial and documentary) and make closing remarks to the fact-finder.
In the case of a jury trial, the jury will deliberate until they have reached a verdict. In the case of a 'bench trial' or jury-waived trial, the judge will give you a decision when he or she is good and ready to do so! The decision might be several months down the road. If either or both parties are unhappy with that decision, there are various appellate options which go beyond the scope of this particular article.
Miscellaneous considerations as to other courts and forums
Here we will give some specific remarks about courts other than the Superior Court.
State District Court
In the state district court, cases get to trial much quicker. Parties are required to certify that their case is ready for trial in the first year after the case was filed, although the actual trial date might take place as much as another year down the road. Ordinarily, there are no juries in the District Court. To some extent, the District Court procedures are somewhat simplified over Superior Court cases inasmuch as, generally speaking, District Court cases are for less than $25,000 and Superior Court cases are for more than $25,000. District Court judges are believed to be more willing to grant real estate attachments and bank account attachments than Superior Court judges. Ordinarily, there are no juries in the District Court system, although certain counties are experimenting with having juries, particularly in criminal matters. Under some circumstances, an adverse decision in the District Court can be appealed to the Superior Court for a new trial.
Federal District Court
The Federal District Court is a court administered by the federal government, not by the Commonwealth of Massachusetts. Federal court procedures tend to be more elaborate and involved than state court procedures. (It is not for nothing the expression: "don't make a federal case of it!"). Unlike the state court, fairly early on in the case the judge will bring the parties in for a scheduling conference to discuss what the particular deadlines will be for various aspects of the case. The focus is on discovery, although other aspects of the case can be focused in on at that time. One of the advantages of the federal court system is that a case is filed with a particular judge and stays with that judge through resolution. (This is unlike both the state district court and the state superior court.)
Thus, there is a greater interest earlier in the process in resolving the matter. In the Federal Court, some motions might be filed solely for the purpose of educating the judge as to the case and to influence the judge as to further activities (and possible outcome) of the case. Ordinarily, it is hard to get into the federal district court for average litigants. First, unless a federal question is involved such as the interpretation of a federal statute, including its constitutionality one needs to sue for $50,000 or more. An exception would be cases specifically authorized under a statute, such as general contractor payment bond cases under the so-called "Miller Act". If a federal question is not involved, then $50,000 or more has to be involved and the plaintiffs and the defendants need to reside in different states. This is the so-called "diversity of citizenship" requirement. The theoretical idea behind the federal court is to avoid so-called 'local bias'. In our practice in the courts of the Commonwealth, the idea that any particular court is more favorable to its own citizens (i.e., those who reside in the county or the judicial district) has not been borne out by our experience.
Arbitration
Most arbitration takes place in front of the American Arbitration Association. Arbitration is expensive. Whereas one ordinarily has a filing fee of between $110 and $185 for the various categories of state and federal courts, the filing fee at the American Arbitration Association specifically depends on the amount in controversy. Filing fees of $750 for a small case are not unheard of and they actually go quite higher. Moreover, in the arbitration proceedings, one has to pay the American Arbitration Association and the arbitrator or arbitrators selected for each activity and at every stage of the proceedings. With the exception of the mediation process, in both the state court and federal court systems, one pays no more to the court for the conduct of the case, irrespective of how long the case takes and what stages and court involvement is necessary to resolve it. At the American Arbitration Association, each party pays $150 per day for each day of hearing and then pays its proportionate share of the arbitrator's daily compensation, which can range from between $800 and $2,000 a day.
Arbitration has several advantages. There are essentially no pleadings. Generally, the only discovery which is allowed is an exchange of documents. Cases ordinarily are scheduled for their first days of trial within 90 days of the filing of the action. Keeping in mind that there is some truth to the old saw that cases settle on the courthouse steps, getting a case actually to trial does, sometimes, assist in its disposition.
On the other hand, cases quite often take longer to try in arbitration than they do in court. The arbitrator is not required (in fact, is encouraged not to) give his or her reasons and rulings on specific requested findings of fact or rulings of law. The biggest detriment to arbitration is that realistically there is absolutely no appeal from an arbitrator's decision. This is based upon specific wording of the Uniform Arbitration Act (UAA) (which Massachusetts follows a local version of) and the cases interpreting that act.
Judicial cases interpreting arbitrators' awards have specifically stated that the fact that the arbitrator made gross errors in the handling of evidence or made obvious misapplication of incorrect legal principles and/or did both are no grounds for setting aside an arbitrator's award. Apart from that, an arbitrator does not have many of the powers that a judge has. Ordinarily, in the absence of a specific contractual provision, an arbitrator cannot assess attorneys' fees to or against a party. An arbitrator cannot issue an injunction. An arbitrator cannot hear triple damage claims under the Massachusetts consumer protection statute. Also, an arbitrator cannot issue a 'judgment'. An arbitrator only issues a "finding". Before a matter is finally disposed of, and in order to give an execution to the sheriff to collect a judgment, there needs to be a judgment. Therefore, in situations where a party will not willingly abide with an arbitrator's finding, an ancillary (additional) court procedure may be necessary to convert the arbitrator's finding into a court judgment. Doing so is not as complicated as it might seem in the ordinary case provided that there are no other non-triable issues involved with the arbitration: for example, there are no claims against payment bonds, triple damage claims, claims for injunctive relief. Where the arbitration of the contract matter is the sole matter at issue between the parties, usually the arbitrator's finding of fact is converted into judgment by the simple filing of a complaint and then a motion to confirm the arbitrator's award.
Our astute readers should keep in mind, however, in some instances portions of the dispute will have to be arbitrated and portions of the dispute will have to be litigated which means, in effect, that there are two separate trials to resolve the issues between the parties. Needless to say, this is an expensive redundancy that happens frequently in litigation due to the fact that some claims cannot be dealt with by the arbitrator. Trying two cases for the same claim is annoying and expensive. As Professor Yogi Berra would say: "It's déjà vu all over again!"
A final thought on arbitration. If you have an arbitration provision in your contract-or, as a subcontractor, your general contractor has an arbitration provision in its contract you can be compelled to arbitrate. Although we have successfully blocked arbitration on occasion where there was a clear arbitration provision, ordinarily, this is a 'no-brainer'. If there is an arbitration provision you arbitrate.
Attorneys' Fees and Expenses - What Will It Cost?
If our faithful readers have read the above, that question has been answered already: it is impossible to tell.
It is like a husband asking a wife how much she is going to spend at the supermarket. She might go for a gallon of milk and a loaf of bread, which by today's prices might be ten dollars! But if she goes for two weeks' worth of groceries and buys a lot of meat, she can spend three or four hundred dollars.
The real questions, from the standpoint of experience, are as follows:
- is this a litigation which should be filed;
- are there less costly methods of resolving the dispute;
- do you have a lawyer who wants to try all of his/her cases or one who is interested in concluding the case as quickly as you are interested in doing so?
There are, of course, other factors. Is your opponent reasonable? Is your opponent's attorney reasonable? One of the most effective collection attorneys we have ever dealt with handles his matters as follows. He will call us or we will call him on a new matter and he will start to talk about his children. Since we both have been at this business for a period of time, now he is talking about his grandchildren. He talks about planting his flowers. He talks about virtually anything else he can think of except matters pertaining to the law or to the matter at issue. This takes perhaps ten minutes for the first phone call of each new matter. Sometimes we feel like Roberto Duran, only wishing to cry out "No mas"!
Then we begin to discuss the matter. Since he is virtually always a plaintiff's attorney, we will discuss why the bill has not been paid. If there seems to be any reluctance to pay the bill in that there is a colorable backcharge or offset, he almost always and immediately offers to accept half.
The foregoing is a bit of an exaggeration. (And, no, we do not intend on giving you his name!) But keep in mind that King Solomon was seen as being wise for dealing in half a baby. The concept of arbitration is widely believed to result in a finding for the plaintiff of at least half a loaf. Then again, remember that your spouse is referred to as "your better half".
In some instances-certainly, not in every or even in most instances-half a loaf or something greater early on in the dispute can be better than what the court system will do for you and to you after some years. The old joke is about a public contractor who went broke because he was the low bidder once too often. If he is not the low bidder, then he doesn't get the work (and have the income stream). But if he is the low bidder too often, he is not charging enough. A realistic attitude in handling disputes over time, dealing with the disputes not from a position of anger and not doing litigation "for the principle, not the money", is likely to save you money over time.
Conclusion
It is hoped that the foregoing will provide an introductory course in Litigation 101 for the uninitiated and a reasonably comprehensive refresher course for the veteran. It is important to keep in mind that the litigation process is 'a process'. It is a methodology of resolving civil disputes that was set up prior to your dispute and will exist after your dispute has been resolved, one way or another. Your lawyer throughout this process is your guide, your interpreter and, hopefully, your zealous advocate. Your job-and your desire-in that relationship is to make sure that he or she is an effective advocate, which, in most cases, will involve resolving the dispute reasonably early.
Use common sense. If you owe the bill, pay it or enter into a payment plan. Keep good records. Document changes and delays. Take periodic pictures and videos. Don't let judges or arbitrators, who are not contractors, decide too many of your disputes. Remember that the litigant does not control the litigation process: the clerk's office and court own the process.
In conclusion, there is the Chinese proverb: "Win your lawsuits and lose your money". Confucius is claimed to have said: "I can try a lawsuit as well as other men, but the most important thing is to prevent lawsuits." A critique shared by our editors: "Suits at court are like winter nights, long and wearisome." (Thomas Deloney, English ballad writer and pamphleteer, Jack of Newbury, 1597).