Approaching Pre-Litigation Construction Disputes Strategically

Disputes on construction projects rarely begin when owners, developers, constructors and design professionals decide to file a summons and complaint or are served with them, thus begging the question of why litigation preparation often starts so late. Disputes arise well before any company is formally a plaintiff or a defendant and once litigation begins, procedural deadlines can be extremely stringent.

Potential plaintiffs risk losing leverage if claims, damages and causation theories have not been fully developed before formal court pleadings are filed. Similarly, since defendants in New York litigation typically only have thirty (30) days to file their response to a summons and complaint absent an extension, they rarely have adequate time to fully assess the issues, identify all potentially responsible parties, determine whether expert retention is necessary and evaluate whether third-party claims should be asserted.

In addition, effective April 18, 2026, New York’s “Avoiding Vexatious Overuse of Impleading to Delay” Act (known as “AVOID”) will require defendants to implead third-parties within sixty (60) days under certain circumstances.

These compressed litigation timelines can result in rushed, forced decision-making and reactive strategies in an effort to comply with statutory or court deadlines for companies anticipating either asserting claims or defending against them.

Companies involved in bodily injury accidents often create emergency response teams consisting of outside counsel and investigators to immediately respond to accident scenes to identify witnesses, secure video or dashcam footage, preserve evidence and take photographs to document the scene before it is altered or disappears entirely. These companies prudently proceed on the assumption that litigation will eventually ensue even if the threat is not imminent.

By contrast, companies involved in commercial construction disputes including owners, developers, constructors and design professionals are often only united in the initial priority, i.e., implementing an agreed upon solution as quickly as possible to mitigate the potential damage without considering any one company’s blame at this early stage.

Despite early collaboration to reach immediate solutions, these companies need to follow the bodily injury approach noted above by engaging outside legal counsel in the early stages of conflict to work with project and in-house legal teams. Early retention will facilitate controlling the narrative, preserving evidence and making informed strategic decisions in anticipation of a lawsuit, regardless of whether companies anticipate pursuing claims or defending against them.

Approaching pre-litigation construction disputes with legal counsel and project teams collaborating will preserve privileges and can materially improve outcomes, enhance efficiency and minimize the ultimate litigation costs. In this regard, early engagement enables legal counsel to understand the technical issues, identify which parties may ultimately be implicated and develop a coherent factual narrative. If litigation ensues, companies can enter the process with a credible record, informed claims or defense strategy and confidence in their position.

Companies involved in commercial construction disputes should retain outside legal counsel who can assist with taking the following practical steps as soon as an issue arises including:

● Developing the Narrative. A designated project team leader and a legal point of contact can centralize information flow and develop the narrative that will enhance defenses, affirmative claims, or both.

● Creating an Evidence Protocol. Issue litigation holds when disputes are reasonably anticipated, preserve native ESI, photographs and video as well as document site conditions before remediation.

● Building a Preliminary File. Maintain a living database of contracts, scopes, correspondence, meeting notes, schedules and cost data with version control.

● Retaining Appropriate Consultants/Experts. Identify and retain necessary consultants/experts in appropriate disciplines to assist the in-house legal and project teams with developing strategies while keeping the work privileged.

● Controlling Communications/Maintaining Privileges. Ensure strategic communication channels through counsel to preserve all confidential privileges and limit internal communications to factual, non-opinionated reporting.

Outside legal counsel can also gain clarity on several fundamentals before litigation begins when they are involved in the early stages of a construction dispute including:

● Scope and Parties. Evaluating contractual scope, exposure, potential liabilities, affirmative claims and other possibilities for recovery or risk transfer.

● Facts and Documents. Building a running chronology and collect key materials such as contracts, change orders, Requests for Information (RFIs), meeting minutes, site reports, schedules, Critical Path Methods (CPM) and other important correspondence such as emails, text messages, and video conference recordings.

● Experts and Site Conditions. Collaborating with appropriate consultants/litigation experts early to assess technical issues and preserve observations while physical conditions remain intact.

● Privilege Discipline. Routing substantive analyses and strategic discussions through counsel to maintain privilege and streamline eventual litigation readiness.

Early engagement of legal counsel transforms reaction into readiness. By aligning legal and project teams, preserving evidence and building a credible record before the first litigation pleading is filed, companies can enter litigation with a coherent, fact-driven narrative supported by evidence that will improve their ultimate negotiation leverage.

Nicholas Kauffman is a partner at Zetlin & De Chiara. Harrison Perlstein is an associate at the firm.

To read the full article published on Law.com, click here.