- with readers working within the Retail & Leisure industries
- within Insurance, Law Practice Management and Privacy topic(s)
In large-scale commercial construction, disputes aren't a matter ofif— they're a matter ofwhen.Bill Shaughnessyand I recently co-authored a practice note for LexisNexis' Practical Guidance about representing owners in construction litigation. Here are a few key insights.
The "Deep Pockets" Problem
Judges, arbitrators, and juries often view owners as the party with the money — the entity trying to avoid paying contractors who did the actual work. That's why owner claims must go beyond legal technicalities. They need strong economic justification that demonstrates fairness and proportionality. Credibility matters as much as the merits.
Litigation Readiness Starts in the Contract
The time to prepare for litigation is before you sign — not after problems emerge. Prioritize indemnification clauses broad enough to cover subcontractor defaults and regulatory violations, schedule provisions with acceleration clauses, liquidated damages that reflect reasonable estimates of actual harm (never call them a "penalty"), and venue provisions that favor your interests.
Two Often-Overlooked Essentials
First, evidence preservation. The moment a dispute appears likely, issue a litigation hold on everything — daily reports, RFIs, emails, texts, and photos. Meet with your project team immediately to capture recollections while details are fresh.
Second, don't forget the bond. Performance bonds are triggered only upon declared defaultandstrict compliance with bond terms. Communicate early with the surety and obtain consent before significant change orders.
Read more in depth on this topic in the fullpractice noteon LexisNexis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
