Litigation of the Major Construction Case

Through the years, Mr. Walstad has been involved in litigation arising from major construction projects, from nuclear power plants to condo office buildings.

He has taught countless seminars regarding the litigation of a major case before the courts. In the process Mr. Walstad has always stressed that the courtroom should never, never be the civil lawyer's "home." Once when reviewing the website of a civil litigation firm, he noted a beautiful photo on the home page of a large courtroom, with the notation in large letters, "This is Our Home." The website stressed their years fighting wars for their clients in the courtroom. He wondered why anyone would use that phrase as some badge of honor.  In fact, in his view, after nearly 40 years in practice, a better phrase, at least for a construction lawyer might be, "We Keep You Out of the Courtroom."

It is not that litigation is to be feared.  There are not many fine lawyers who are skilled in the courtroom and who relish the opportunity of trying a case there for a judge or jury.  For a skilled lawyer, there are few highs that can match the exhilaration of putting all your skills on the line and presenting a convincing, penetrating, exciting and sometimes emotional case on behalf of a client and winning! The trial should come, however, only after every avenue for settlement has been explored and the parties have only one way to resolve their dispute, and that is in the courtroom.  Knowing that, a civil trial lawyer can turn his whole attention to winning the case and never look back with shame knowing he could have settled the case, but didn't do so because he wanted that exhilaration one more time regardless of the cost to the client.

Mr. Walstad is an experienced litigator. You can read about his experience in his CV. He wasn't rated "AV" by his peers for any other reason. He won major cases and negotiated significant settlements, and they awarded him for that effort by voting for his rating.  He would like, however, to think that the "AV" rating reflects the care and concern he has for each client, regardless of whether their case is ever litigated.

If you are looking for a trial lawyer, WLG stands ready to discuss with you whether we can be of help.  We are often approached but usually take only selected cases, depending upon the issues and the parties involved.  We would welcome the opportunity to speak with you about your matter and consider whether your company and ours would make a good team.

WLG wishes to share with you some of the things it has learned in the litigation process. We could write hundreds of pages about this, but we will offer only a few that we hope will benefit your interests, regardless of whether you retain us or someone else as your trial counsel.

Developing a Litigation and Risk Analysis Model

A good case deserves a careful analysis of its risks and the likelihood of success.  The methods are numerous for analyzing the risk of litigation verses settlement for a specific amount or on variable terms.  It is important that this analysis be done as early as possible and adjusted as more data becomes available to your team.

At WLG, we utilize the latest in litigation risk analysis techniques to aid our assessment of the case for the client.

Litigation Risk Analysis is an application of the science of mathematical probability that helps us to predict the probably outcome and probably cost/benefit of a given case. The Litigation Risk Analysis is only mathematical model or way of looking at the facts and potential risks.  It is not an exact science since, and should never substitute good judgment, common sense, and experience. It is only a tool we can use to assist us in the assessment of a case

The accuracy of such methods is dependent upon the correctness of the assumptions and relationships built into the Risk Analysis model. The failure to identify key issues or to consider important legal relationships between the parties and issues can create an error in the model.

To ensure the model is as appropriate and accurate as possible, you should ensure your team involved in the process includes those most directly involved with the project, your counsel most familiar with the facts to date and such consultants or independent parties as you have assembled to assist you in the whole process.

Sometimes the use of a litigation risk analysis consultant is advisable, particularly when your company and your counsel have little experience with decision trees and this method of scientific analysis.  This consultant can even hold a training session for your team, explain how the modeling works, the reason for a particular logic and the application of risk to each logical path.

The method very much depends upon the willingness of team members to be honest and forthright about their judgment regarding the strength and weaknesses of your case in every aspect under review.

WLG can assist you in developing a litigation risk analysis model that will aid the assessment of your case.  Please feel free to contact us for consultations regarding the preparation of your model.

The Forensic Audit as a Discovery Tool

Any construction claim involves the assessment of very large sums, sometimes in the hundreds of thousands, sometimes in the millions, and sometimes in the billions.

WLG has found it beneficial and advisable to often employ the assistance of some of the best forensic auditors the world has to offer in analyzing the costs claimed against its clients.  We only utilize this process if our understanding of the facts requires such an investigation to verify costs and claims which appear questionable, unrealistic or unsupportable.

We have also found such investigative tools as an aid during negotiations and in mediations. One should never underestimate the impact of an audit report on negotiations, as we discuss further below.

PROTECTING YOUR COMPANY'S PROPRIETARY, PRIVILEGED & CONFIDENTIAL DATA

Too many matters end up headed full-steam of litigation because of insufficient or improper documentation and without ensuring the company's databases are properly protected and maintained.  See our discussion on this website regarding Claims Avoidance & Documentation. Even if litigation cannot be avoided, proper documentation is essential for a successful claim or defense. There is a significant difference between a properly substantiated assertion and a mere "story" without supporting documentation often spells the difference between success and failure in negotiations, claims and defenses.  Sometimes the most significant documents are not even known at the time a major dispute arises and only are discovered once counsel are reviewing the company's records.

For the protection of your company, we strongly recommend:

• All full-time, key employees should be required to sign a confidentially statement as a condition of their employment.  These employees should be debriefed upon termination concerning their duty to maintain the confidences of their former employer. If the employee had access to privileged and confidential information, then the employee should be informed concerning the special responsibilities associated with that information.
  
• Contractors who are going to have access to your proprietary and confidential data as part of their work, should be required to sign confidentiality agreements before having such access.
  
• If you are terminating an employee, contract employee or contractor, it is best to take appropriate steps within your company, before announcing the termination to ensure that the computers of the individuals or company are under control of your team, that the hard drive cannot be wiped clean and your network is not subject to some retaliatory action that the employee or contractor may angrily try to take before departure.
  
• All employees should be required upon termination to turn over or return any document that belongs to the corporation and particular those which relate to contacts with legal counsel, whether in-house or outside counsel, and any company confidential and/or proprietary data.
  
• Each organization should develop its own requirements, procedures and training programs to ensure that its confidential and privileged information is protected.
• We recommend that your company, under the direction of your general counsel, develop a checklist for ensuring that on your construction projects, proprietary data and attorney/client communications are fully protected.

WLG has assisted many companies, including some in the Fortune 500, on protecting their data in view of the latest changes in litigation requirements relating to databases and attorney/client confidentiality.  We are available for consultation with you regarding such matters.