Overview of Construction Litigation In Virginia
0September 16, 2024 by Tom Roberts, Esq.
Overview of Construction Litigation in Virginia:
Litigation of construction law is a specialized area of legal practice that combines litigation skills with knowledge and experience in construction litigation. Successful firms like Thomas H Roberts & Associates, PC combine solid litigation skills with the knowledge and experience from construction litigation cases.
Construction Contract:
At the heart of most construction disputes is the contract. A construction contract involves an offer, acceptance and consideration. Most construction contracts are written but some may be verbal. A solid understanding of contract law is essential to successful litigation of construction disputes.
Breach of Construction Contract
Identifying material breach of a construction contract is essential.
Under Virginia law, a party who commits the first material breach of a contract is not entitled to enforce the contract!
So What Is A Material Breach?
A material breach is a failure to do something that is so fundamental to the contract that the failure to perform that obligation defeats an essential purpose of the contract. If the initial breach is material, the other party to the contract is excused from performing his contractual obligations.*1
Exception:
An exception to this rule arises when the breach did not go to the “root of the contract” but only to a minor part of the consideration.
Construction Trade & Practice:
Litigation of construction cases almost always involves specialized knowledge that must be explained to the judge or jury – for that expert testimony is almost always required.
Construction Experts:
In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify.*2
In a civil proceeding, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.*3
Gathering and Preserving Evidence:
At the first hint of trouble, engage experienced legal counsel to guide you in gathering and preserving evidence.
Identifying and Gathering Evidence:
Its not just the rules that count, it is knowing how to use the rules and more importantly how to persuade a judge or jury with the evidence, and arguments. It all starts with legal experience, identifying material facts and information.
Spoliation of Evidence
Spoliation of evidence occurs when a party is aware that there is pending or probable litigation involving evidence in the party’s custody or under its control, and such evidence if destroyed or otherwise not preserved will interfere with the ability of the adverse party to establish some element of its claim or defense.*5
While Virginia does not recognize a separate suit or cause of action for spoliation of evidence,*4, it does penalize parties for destroying or failing to preserve evidence which is called “spoliation of evidence.
A party’s claim or defense may be rejected for spoliaton, or a jury may be instructed that they presume that the evidence destroyed would have hurt the case of the party that failed to preserve or destroyed the evidence.
Discovery:
Most often, after suit is filed, the parties engage in a process called “discovery” where the parties, are able to gather information about the case reasonably calculated to lead to admissible evidence. The discovery tools, involve site visits, subpoenas for documents, interrogatories or questions that must be answered under oath, depositions of the parties, witnesses and experts, requests for the production of documents and things, requests for admissions, etc.
Once again it is important to have seasoned legal counsel skilled in the art of discovery.
Construction Mediation and Arbitration (ADR)
Often construction contracts will have very detailed alternate dispute resolution provisions (“ADR”). These provisions often control the litigation, often requiring mediation prior to litigation or may even involve arbitration. Once again, you will want a law firm experienced with ADR. Thomas H. Roberts & Associates, PC has been involved with mediations for more than 30 years. The firm also litigates in arbitrations.
The Art of Construction Litigation:
Litigation is ultimately an art carried out by skilled courtroom warriors – You want the best on your side! .
Jonathan Arthur, Esq. is a seasoned and skilled litigator, who has litigated multiple construction cases. Importantly, his knowledge is not just from the law, but from knuckle busting, sweaty labor in the construction industry.
Andrew Bodoh, Esq., an seasoned and experienced attorney has litigated numerous construction cases. Once again, the attorneys with Thomas H. Roberts & Associates, PC have real world experience dealing with construction matters – Andrew Bodoh, Esq. has an additional niche dealing with disability law and the Americans with Disability Act (ADA).
Navigating Construction Litigation:
Because of its complexity, construction law often requires specialized legal expertise to navigate. You want the best on your side! .For Construction Litigation in Central Virginia, contact Thomas H. Roberts & Associates, PC
NOTES:
(1) Horton v. Horton, 254 Va. 111, 115-16, 487 S.E.2d 200, 203-04 (1997)
(2) Va Code § 8.01-401.1
(3) Va. Rules of the Supreme Court § 2:702(a)(1)
(4) Austin v. Consolidation Coal Co., 256 Va. 78 (1998)
(5) Emerald Point, LLC v. Hawkins, 294 Va. 544, 556 (2017).
Disclaimer
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Category Contract Law, General, Litigation | Tags: construction attorney, construction law firm, construction lawyer, construction litigation in central virginia, construction litigator, virginia construction law, virginia construction law firm, virginia construction litigation, Virginia construction litigation law firm
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