The AmLaw Litigation Daily, a newsletter from American Lawyer Media (ALM), recently featured Burr Partner Cheri Gatlin. In a Q&A discussion about the rise of manufacturing construction, Gatlin provided insights on effectively navigating litigation risks and construction disputes.

Spending on manufacturing projects has increased to more than $200 billion, up 70.8% year-over-year, since July 2023. While Gatlin noted that the influx of funding - from the Jobs, Inflation Reduction, and CHIPS Acts - is a good thing for much-needed infrastructure updates, these kinds of large construction projects tend to generate litigation. It is common for there to be interferences and unexpected issues, but the scale of those costs can rise quickly and leave the involved parties feeling compelled to try to recoup that money.

“I think what you will have with that investment is a proportionate increase in these types of claims related to the amount of money that’s gone into the industry,” Gatlin said. “Those are going to be Eichleay delay claims, acceleration claims. In addition to those types of claims, you always see some defective work claims, which will generally involve the surety and insurance industry as well. Some of those claims will be covered by insurance. Some will be covered by surety bonds.”

Among the key areas where litigation is likely to increase are with regard to related surety bonds, the responsibility to complete large and public projects, and the wide range of issues that arise during road building, such as timing and regulatory violations.

Gatlin also discussed what it takes to be effective as a construction litigator. “First of all, you have to be willing to really sit down and get in the corner of understanding what your clients are doing and what the other side was doing. You have to be, frankly, willing to get into the engineering and the math,” she said. It is important to truly understand the industry and the ins and outs of a project to be able to explain the complex issues involved in a simple way to a jury and arbitrators.

“Other skills you have to have include a litigation mentality,” Gatlin concluded. “You have to like the litigation process. Don’t get stressed by it. You have to be able to understand the forest and the trees and then show somebody the overall picture and not get too down in the weeds. Be able to tell a story. I believe that every case is a story and that people understand things in story mode. They want to know who the protagonist is, who the bad guy is, what really happened, and why it happened. What is the story? So I think ultimately, if you’re the lawyer that’s going to present the case at arbitration or trial, you have to be a storyteller.”

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