The Top Five Mistakes Construction Lawyers Make—And How to Avoid Them

With four decades of experience as a construction lawyer—and having served as amediator or arbitrator in over 300 construction disputes—I’ve witnessed both exemplaryand poor lawyering. I have made my share of mistakes, learned from them, and benefitedfrom the guidance of outstanding mentors. My hope is to pass on some of these hard-earned lessons to help both new and seasoned construction lawyers better serve theirclients and the profession.

Below, I outline the first five of the top ten mistakes I have seen (and I am guilty of makingall of them), along with practical advice for avoiding them.

Mistake No. 1: Neglecting the Facts -- It’s Always About the Facts

A wise construction lawyer once said the four most important things in construction law are:

1. The facts.
2. The facts.
3. The facts
4. The facts

This is no exaggeration. Construction disputes are uniquely fact-intensive, involving a web of issues—bids, change orders, delays, supplementation, liens, defects, default, passthrough claims, terminations, and more—each with its own complex factual background. Unlike many commercial disputes, construction lawyers are often called in before a problem escalates, making thorough fact-finding even more critical.

Key lessons include:

• Relentlessly gather and organize all project documents. Many clients lack robust record-keeping systems, and staff turnover can lead to lost information. It is your job to ask, ask again, and keep asking until you are sure you have everything.
• Don’t be surprised by “hidden” documents. I once discovered, on the eve of arbitration, that my client’s superintendent had a personal project journal that hadn’t been disclosed. That journal had not been provided to me, much less to the other side, and certainly was not a hearing exhibit. I disclosed the journal, produced it immediately, and was able to use it (over objection, but that is one of the advantages of arbitration). That could have been disastrous.
• Master the facts—yours and the other side’s. The most persuasive lawyers know the record inside and out, including the opponent’s exhibits.

So, the moral of this mistake is facts win cases. Ignore them at your peril.

Mistake No. 2: Failing to Educate Clients on Arbitration

The debate over arbitration versus litigation is perennial in construction law. Too often, lawyers fail to fully inform clients about the pros and cons of arbitration, or they let transactional lawyers insert boilerplate arbitration clauses, including the frequently used AIA series of construction contracts without proper consideration.

Arbitration is ultimately a business decision, and your role as counsel is to present both the advantages and disadvantages, tailored to the client’s specific needs and the circumstances of the project. Additionally, it is essential to draft arbitration clauses with care, as many are poorly written and unworkable due to a lack of real-world arbitration experience on the part of the drafter.

These are some key practicalities that should be considered:

• Third-party claims. Arbitration generally does not allow for joining non-parties unless all contracts align. While the arbitrator has subpoena power and can sign a pre-hearing third party document subpoena, the arbitrator does not have the power to enforce the subpoena.
• Is quick resolution critical to your client? If yes, and the case may need weeks of testimony, it may take substantially longer to get a trial date than if you arbitrate.
• Most arbitration rules limit depositions and pre-hearing discovery, which can be a blessing or a curse. This can be expanded in the drafting of the arbitration clause.
• Dispositive motions. “Summary judgment” as known in court doesn’t exist in arbitration. There is, in rules like the AAA, an opportunity to file “dispositive” motions, normally after permission to file is given by the arbitrator, but the consensus is dispositive motions are rare and harder to win.
• Appeals: Arbitration awards are extremely difficult to overturn.
• Expertise: Arbitrators often have deep construction knowledge, which can cut through dubious expert testimony.

So, the lesson from this mistake is simple: do not be swayed by those that hate or love arbitration. Consider what is in the best interest for your client in the specific project bearing in mind all of the circumstances. Provide your best advice, and let the client make the final call on whether or not to arbitrate a construction dispute.

Mistake No.3: Insufficient Due Diligence on Mediators and Arbitrators

Selecting the right neutral is one of the most consequential decisions in any construction dispute. Yet, many lawyers do little more than glance at a bio or accept the other side’s suggestion.

Research mediators and arbitrators thoroughly and use one that is an experienced construction lawyer.

For mediators, it is important to understand their style—whether they are aggressive, facilitative, or evaluative—and to consider whether their approach will suit your client and the dispute. Great mediators say, “I don’t care if you ever use me again, my client is the deal, and I’ll do whatever it takes to get the deal.” You have to do your own research. Discuss your choices with colleagues. Do a google search for articles authored by or about the mediator you are considering (or proposed by the other side. And here is the most neglected action item: call up the proposed mediator. Remember, this is settlement, not arbitration.

For arbitrators, go beyond the provided bios by searching for articles and presentations they have authored, and ask trusted colleagues about their experiences working with them. Selecting an arbitrator is serious business since the arbitrator’s final decision is binding and with few exceptions, unappealable.

The selection process is like selecting a jury: cross off unacceptable arbitrators; list the rest in order of preference; send the list back to the case administrator; and soon you are assigned an arbitrator (or a Panel).

Regardless of selecting a mediator or an arbitrator, these are key lessons:

• Involve your client in the selection. The client is paying for the neutral and deserves a say.
• Ask the right questions. How do they handle difficult parties? What’s their approach to discovery and dispositive motions? Do they have industry expertise relevant to your case?

The bottom line is the right neutral can make or break your case. Do your homework and keep your client in the loop.

Mistake No. 4: Refusing to Drop Weak Claims or Defenses

Lawyers are trained to assert every possible claim and defense at the outset, especially when facts are unclear. The mistake is clinging to weak positions all the way to hearing or trial.

Credibility is everything. Arbitrators and judges quickly lose trust in lawyers who push meritless claims or defenses. It is important to be strategic and focus on your strongest arguments, as dropping weak claims can actually enhance your credibility and improve your chances on the issues that matter. Additionally, you should educate your client— some clients want to “throw everything at the wall,” but it is essential to explain why focusing on the best claims is in their interest, both for credibility and cost.

To be clear, to fold a bad claim or defense you must fully educate and involve your client, and that can sometimes be difficult. The client is in charge and calls the shots. But there can be substantial credibility gained by strategically, timely, and tactically making concessions prior to and especially during a hearing.

As Kenny Rogers wisely sang: “You’ve got to know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.”

Mistake No. 5: Being Unprofessional with Opposing Counsel

Most construction lawyers are professional and reasonable, but some fall into the trap of being combative or uncooperative, often at their client’s urging. The mistake (and it can occur with both young and old construction lawyers) is, simply put, being a jerk. Bad behavior can occur any number of ways, such as getting way too personal (“what kind of lawyer are you?”); inserting your ego into the matter (“never in my XX years have I seen such a **! argument); or simply refusing to cooperate when a reasonable request is made to extend a deadline (“why should I do that since you and your client are **?).

The old adage “what comes around goes around” is applicable.

Professionalism pays. Cooperation with opposing counsel can save your client time and money and often leads to better outcomes. Reputation also matters, as word travels fast in the legal community—being known as a “jerk” can cost you referrals, professional opportunities, and even clients. It is important to explain your approach to clients; if a client demands scorched-earth tactics, you should clarify why professionalism is in their best interest. Finally, don’t take it personally—let your adversary know you’re advocating for your client, not making it personal.

The simple advice: Don’t let your ego get in the way. Be aware of the consequences of unprofessional behavior. Be tough, be a zealous advocate, but never sacrifice professionalism. Your reputation—and your client’s case—depend on it.

Conclusion

Mistakes are inevitable in any profession, but the best lawyers learn from them and strive to improve. Whether you’re new to construction law or a seasoned veteran, keep these lessons in mind to better serve your clients, your colleagues, and the profession.

Stay tuned for mistakes six through ten. In the meantime, keep learning, keep growing, and always aim to be the best construction lawyer you can be.

Republished with permission. This article, "The Top Five Mistakes Construction LawyersMake—And How to Avoid Them," was published by the American Bar Association ©2025 in the Fall 2025 edition of Under Construction on October 14, 2025.