by: Dr. Shelley Spiecker
Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses. The first is a filter of “power” and the second is a filter of “choices”. Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices. Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom. Furthermore, social science
research documents that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging.
In construction cases, decision-makers primarily key in on three areas of perceptual choice:
Contractual commitments and contractual performance
· What options did the parties have when entering into the contract?
· What opportunities did each party have to meet their contractual commitments and how did they do in meeting them?
· Who had the greatest responsibility under the contractual terms?
- Which party showed the most follow-through on deadlines?
- Which party was in the best position to meet deadlines?
- Which missed deadlines were most critical to the central issues in dispute?
Communication opportunities and follow-through
- How might better communication have avoided this dispute?
- Who was in a better position to have more effectively communicated?
- Which critical communication errors, if avoided, might have avoided this conflict?
With regard to the second decision-making filter, perceptual power, decision-makers gravitate to the following four key areas:
- Who controlled the purse strings and were resources effectively allocated and spent?
- Were funds squandered and if so, who is most responsible?
- Which party used available funds most responsibly?
- Who was contractually responsible for calling the shots here?
- Who was realistically responsible for calling the shots here?
- Which decisions were most detrimental to this project and who was most responsible for making them?
- Did either party usurp the decision-making authority of another party and if so, how did this impact the project?
- Would additional staffing resources have helped avert this problem and if so, who had the most access to additional resources?
- Which party can claim “damages” to sub-contractors or other parties beyond itself?
- How might additional staffing have prevented this dispute?
- Who was in the best position to have altered this outcome?
- Who had the most experience with these types of construction projects?
- What could each party have reasonably relied upon regarding the other party’s experience and sophistication with this type of construction project?
It is important to note that decision-makers do not view these areas of perceptual power and choices in isolation. In contrast, they compare the parties’ respective choices and power. The following quote from a mock juror deciding a delay case illustrates this comparison decision-making truism: “What happened is a failure of communication. I don’t think either one of them, clearly [the owner] didn’t state exactly what he wanted, and [the contractor] could have asked for a real contract.”
From an arbitrator analyzing the same case facts, “The money always has more control.” “Are there any other reasons why you believe the developer had more control?” “Because they were the ones that wanted it done in the first place; it was their project, their idea. . .” “Any other reasons why you think the developer had more power to make this project go successfully?” “They’re in charge of the plans and it says so in the contract.”
When building the persuasive construction case, frame the presentation of your evidence within these perceptual filters to talk in the terms of power and choices your decision-makers are primed to instinctively seek.