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The Litigation Consulting Report

Construction Litigation Graphics: Construction Delay or Defect

Posted by Ken Lopez on Thu, Apr 28, 2011 @ 09:37 AM

Construction cases are among the most difficult for even the most experienced litigator to present to a jury.

As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers.

Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory. 

Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury. 

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Clearly, many otherwise skillful attorneys have often failed to do a good job in persuading juries to award damages to their clients, even when there has been considerable proof of a significant loss.

We are aware of all these issues and problems, and we have prepared a number of trial presentations that have successfully set forth a complex set of facts in a way that is appealing and intuitive to jurors.

The “Construction Litigation Graphics Showing Construction Delay” animation covers months of construction in less than three minutes, using small boxes to represent panels needed in the project and to show how many areas were left unfilled during construction. This gives jurors a clear picture of the delay that occurred in this particular instance.

In a construction project, delays in one part of the project often have cascading effects and cause construction delay in the entire project. Jurors often have a hard time understanding the concept of a “critical path” – a sequence of activities that must be followed in order to get the project done. This idea is developed on a visual basis in the below overview trial exhibit, “Understanding Construction Schedule Charts.” We use standard construction chart flags, colored bars, and other graphic devices to introduce the subject.

Critical path and construction litigation trial graphics

A typical construction defect case, involving an inadequate technique for soil compaction, is clearly explained in our trial graphic, “Actual vs. Recommended Structural Compacted Fill.” Here we show graphically how a building footing was placed on top of unsuitable or uncompacted soils, potentially leading to serious damage.

Construction trial graphics involving construction defect
These trial exhibits show the breadth of ways in which we can make complex construction concepts clearer to juries.

Tags: Trial Graphics, Litigation Graphics, Juries, Animation, Illustration, Construction Litigation, Construction Defect, Construction Delay, Information Design

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting

Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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