by Ron White, The Critical Path, 04.30.2010

I am very happy to guest muse about construction law today, but first I want to muse a bit about the original Muses of Greek mythology, and their Dad Zeus. Why? Because some times the history of a construction project reads like a Greek tragedy.

You might remember that the Muses were goddesses of the arts and sciences, including poetry and history, geometry and astronomy, tragedy and comedy. Their Dad was a pretty powerful guy: he could control the weather and give orders to any mortal or god, except The Fates, the goddesses of destiny who controlled the life and destiny of everyone.

Construction Muses (and their male counterparts) of our day are the gifted ones who design, finance, supply, and build our edifices of granite, steel and stone. Each project has Zeus-like figures who are effective leaders and very good at giving orders but, unfortunately for schedulers and unlike Zeus, can not control the weather.

But when misfortune strikes, turning construction professionals into adversaries, it is The Fates who control the futures and fortunes of the combatants.  Who are The Fates in the construction world? Jurors, ordinary men and women deemed by law as The Great Deciders of the fates of all who enter the temples of justice we call courthouses.

Since jurors wield such great power, jury dynamics should be carefully considered by anyone wanting a jury trial.  This is especially true for members of the construction industry because delay claims, defect cases, and most other types of construction disputes take longer, involve more witnesses, require more exhibits, and are generally more complex than the average case pending in civil courts.

This is not to suggest that jury trials should be avoided at all costs. If your opponent’s unrealistic view of the risks of trial results in low-ball negotiation tactics or a scorched earth litigation strategy, you may decide to accept the risks and limitations of a jury trial because you feel you have no other choice. I have been there and done that. If you go this route, there are Three Myths about Juries you should know about: 

Myth No. 1: Justice is served when a dispute is submitted to a “jury of one’s peers”.

The truth is the U.S. Constitution does not give you a right to a trial by a jury of your peers. The Seventh Amendment simply preserves the right to trial by jury in civil cases “and no fact tried by a jury, shall otherwise be reexamined in any court of the United States, than according to the rules of common law.” Therefore, while jurors are the judges of the facts in a trial, they need not be your peers. A “Peer” is defined as “One’s Equal,” and opposing counsel will make sure that none of your peers in the construction industry are on the jury........read more