Construction litigation strategies

Construction accidents and fatalities are among the most challenging injury cases to litigate and take to trial. In addition to general negligence and construction injury law (i.e., Privette Doctrine, etc.), these matters often require an intricate knowledge of medicine, biology and best practices within the construction industry. In recent cases, issues such as human factors, industrial ergonomics, state of the art science, and (on the medical side), TBI and related medical science were hot topics.

Demonstrating this knowledge alone may not secure the resolution a client needs to recover damages. An attorney needs to logically explain what occurred, why it occurred and how it could be presented. In a case I worked on involving a man severely injured in a rock crusher machine at a recycling plant, there were no witnesses available who saw how the worker was hurt, or why. All that was known in this case was where he was found. We were able to establish, by showing that the machine was typically operated by one person, that if the operator left his station, it was feasible when the machine was made (1981) to have an operator presence system in a pad on the station. This would not have been expensive, and would have stopped the machine once the operator left.

This is an example of science, state-of-the-art technology, and forensic failure analysis approaches solving the dilemma. But answering questions is not the whole equation. The trial lawyer must also connect with a judge and jury on a visceral level to effectively explain the magnitude of the injury. All of this must be achieved while ensuring the trust of the client and their family. A good trial lawyer may use animations of the incident and how it could be prevented. They may also use graphics and animation to explain and emphasize surgeries, injuries, and what was broken that cannot be fixed in the victim.

Let’s review the data that sets the stage for the practice of construction law, and the elements that comprise compelling arguments in the modern courtroom.

The Tragic Data Behind a High-Risk Profession

Construction continues to be one of the most dangerous industries in the United States.

The Occupational Safety and Health Administration (OSHA) released injury and fatality statistics for 2020. That year, which is the most recent data available, workers in “transportation and material moving occupations and construction and extraction occupations” accounted for nearly half of all fatal occupational injuries (47.4%) in the U.S. Focusing further on California’s construction sector, thousands of non-fatal injuries were reported on or near construction sites, as well as 92 on-the-job fatalities. On average, one construction-related death occurred every four days in the state.

The frequency of these tragedies alone further contribute to the backlog in California’s court system. We know that most cases do not reach trial, but we must prepare as if they will. Trial lawyers for the people who do construction injury cases need to honestly assess the claims that have genuine chances of being heard by a judge, and – perhaps more importantly – they need to honestly assess if they feel confident enough to win.

Discovery and Quantification

Each construction claim is unique. While some victims may not have heeded safety precautions, many do and still sustain life-changing damages. In safety practice, the hierarchy is straightforward. If there’s a hazard, design it out. If you cannot, guard against it. If you cannot, warn. That’s the simple analysis.

Imagine a steel I-beam landing on a worker’s head. Even if the victim wore a helmet and protective gear, they can still sustain a broken neck and a traumatic brain injury (TBI). Once that client hires you, you need to have begun discovery yesterday. You know three of the basics:

A thorough investigation of the site and the severity of the damage can demonstrate if and how the construction company was negligent, or if they were operating an unsafe worksite. It can also identify potential defendants by investigating the machinery at issue, if relevant.

Witness statements need to be collected as soon as possible, because we know that memories become less reliable over time.

Securing any audio and video surveillance.

A knowledge of legal precedent is critical, of course, but do not let your argument rely on case law. Taken a step further, construction injury lawyers need an advanced understanding of injury causation, biomechanics, and the human body. This supplemental knowledge will only strengthen your arguments and help you quantify the injury and explain to the court:

The extent of the physical damage.

How it will impair the victim for the rest of their life.

How long it will take them to recover (assuming it is even possible).

How it will prevent them from returning to work or earning the same wages.

The damage to them emotionally.

The cost of care needed past, present, and future.

Numbers and facts can be effectively complemented with visual aids. It may seem counterintuitive – after all, you will explain exactly how and why an injury occurred and its long-term devastation. But assume the judge or jury will not be as well-versed in these matters. Construction injuries can range from something direct and easily understood – like a broken leg – to something as complex as a TBI. People retain 70% or more of their information in non-verbal ways. Use of visual aids helps reinforce and effectively communicate. A brain injury that looks minor on an 1.5 Tesla MRI scan may appear differently on a SPECT scan, a PET scan, a fMRI scan, or a 3 Tesla MRI scan. Calling attention to this through the testimony of an expert, like a nuclear medicine specialist, will help a judge or jury better understand the injury.

The Impact of Visual Advocacy and Demonstrative Evidence

The modern lawyer should be aspiring for evidence that transcends still images and medical scans. Advances in technology have strengthened how demonstrative evidence can illustrate a client’s injuries and impairments during trial or mediation.

For example, during pre-trials or mediation, try to paint a picture for the adjuster about how a trial would look. Let them see what a day in the life of the victim is like in the aftermath of the accident, and use medical-legal illustrations of their injuries and struggles. If you have a particularly important and persuasive witness, show a short video of their evidence.

Harness the compelling abilities of 3-D imaging, which can be invaluable to proving liability, if an injury is more intricate than most. Along with computer animations, 3-D models can recreate accident scenes and injuries. Radiographs that show bone and tissue can be brought to life with 3-D models that juries can review when they deliberate.

Harkening back to the fact that investigations need to be conducted “yesterday,” rapid action better positions you to finance and produce these compelling pieces of evidence. And with the continued integration of videoconferencing during all stages of an injury claim, coupled with the fact that court officials are trying to reduce any further backlogs in the court system, visual advocacy can be integral in securing high-value settlements.

Our clients are victims of wrongful death, negligence, and catastrophic injuries that upend their own lives and their families forever. The construction profession will also be at a loss, because their skills are vital to the strength of the state and national economy. Their recovery hinges upon every action you take and detail you mention at trial or the negotiating table. Meticulous approach typically yields the best results. Armed with these guidelines, you can have success.