I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I try to be a good mentor to young construction lawyers. Becoming a great and successful construction lawyer is challenging, but the rewards are many. The following is No. 7 of the top 10 mistakes I have seen construction lawyers make, and yes, I have been guilty of making this same mistake.

No. 7: Not Paying Attention to Your Arbitrator or Judge During a Hearing

Trial and hearing advocacy skills – whether you were exposed during law school or in the heat of a legal battle – can be both an art and a science. This blog post does not relate to jury trials, but to arbitration hearings (which can be in front of one arbitrator or a “panel” of three arbitrators). However, it is equally applicable to bench trials before a judge.

No matter how much we try to become a “paperless” society, most construction projects that turn into a legal dispute will be document intensive. In a typical construction arbitration hearing, there can hundreds of proposed exhibits, normally presented in scores of “exhibit books.” I was the chairperson in a three-week arbitration a few years ago that had 850 exhibits contained in 30 exhibit books. There were 45 disputed change orders, various delay claims, and multiple expert witnesses. There were attempts to present the exhibits through the use of flash drives and technology, but at the end of the day, most arbitrators will want hard copies.

Of course, all of the significant lawyer and client preparation for an arbitration can be wasted if the parties’ presentations are not presented in a manner that takes the arbitrator into consideration. While an arbitrator will have some general knowledge of the issues, the majority of the time during the hearing, he is drinking through a fire hose of facts, witnesses, dates, issues, and exhibits, while at the same time trying to take legible notes.

Here are the two horrible, no-good mistake scenarios that often occur and can undermine even the best lawyer preparation and presentation:

1. You have prepared for days for a vital cross-examination. This is why you went to law school and became a construction lawyer. Your client representative can’t wait to see you in action. Your cross is going great. You are in the zone. You stare down the intimidated witness. You nail the witness many times, going back and forth between exhibits in exhibit book 1 (which has 55 exhibits). You are just about to complete your cross after getting the witness to admit a key fact when you look to the side, hoping to see the arbitrator admiring your prowess, and notice the arbitrator is… busy flipping through exhibit book… 4. Has the arbitrator even been following your devastating cross? 
2. You have diligently prepared for a vital direct examination on which you and the witness have been working for days. You have five key areas to cover, and the examination will probably go for three hours. You start, and the direct is going great. You seamlessly run through multiple exhibits, complete the first three key areas, and make a vital point. But then the arbitrator says, “I am so sorry, counsel, I have been lost for a few minutes. What issue are you now addressing and to what exhibit are you now referring and what exhibit book is that in?”

In either horrible scenario, you can bet that the other side won’t let you just repeat your devastating cross (and even if so, the witness is now prepared) and certainly will object to a repeat of previous testimony. 

The obvious “no good” mistake made over and over again (by both young and old construction lawyers) is the failure to pay attention to the fact finder. But there are a number of practical solutions to avoid this mistake:

• Slow… down… your examinations. Pause between questions.
• When you move on to another subject or topic, tell the arbitrator to get her oriented — and to give her a chance to finish or make notes or put markers on the exhibits you have just used.
• If you are going to be using multiple exhibit books during the examination, tell the arbitrator before you start an examination (“Mr. Arbitrator, for my direct examination of Mr. Client, I will be using exhibit books 5, 9 ad 10”) so he has a chance to have the exhibit books ready to go and follow along with you.
•  Always look up and give the arbitrators time to get to another exhibit book and find the specific exhibit. Make sure they are caught up in all respects. It is perfectly fine to ask if the arbitrator is caught up and has the book/exhibit.
• Use a co-counsel or client representative to keep an eye on the arbitrator and to let you know, as you begin to ask your vital questions (the “Perry Mason” moment), if the arbitrator is caught up, not taking notes, or has his nose in another exhibit book.

The lesson to be learned is, in the end, pretty simple: Especially in arbitrations where an appeal is really difficult and many times there is not a court reporter, make sure that your fact finder hears your great advocacy on behalf of your client. That way you and your client can be assured that, win or lose, the arbitrator heard and considered your arguments.