The Witness Knows the Project: Preparing Construction Witnesses for Testimony

Written by Debran L. O'Neil

Construction disputes are about more than contracts, schedules, change orders, and emails. As Cathy described in her prior post about the TRA groundbreaking, these disputes also turn on the people who built the project. The project manager remembers the schedule. The superintendent remembers what happened in the field. The architect remembers the design discussions. And the owner's representative remembers the decisions and why they were made.

When a dispute arises, these people become the most important witnesses in the case.

A witness may have spent years managing a project but never testified under oath. That makes witness preparation critical in construction cases. By the time a deposition occurs, the witness must reconstruct events from hundreds of project records, most of which were created years before testimony.

Effective preparation is not about teaching a witness what to say. The goal is to help the witness understand the process, remember what happened, answer questions accurately, and stay credible when the questions get hard.

Start by Listening

The first step is often the simplest: let the witness tell you what happened. Rather than walking through a lawyer-created timeline, start with an open-ended question: “Tell me what happened.” Then listen.

Often the documents don’t tell the full story. A project manager may remember a conversation about a delay that never made it into the meeting minutes. A superintendent may remember a field condition never captured in an RFI. They lived the project. They know the facts best.

Identify what the witness knows firsthand, what they learned from others, what they remember clearly, and what they need help remembering.

The goal is not to create a perfect version of the project’s history. The goal is to understand the full story so you can shape your strategy around the actual facts and avoid hearing an important detail for the first time during testimony.

Remember That the Witness May Feel Like They Are on Trial

Construction professionals take ownership of their projects. They are responsible for getting things built, keeping schedules on track, managing subcontractors, responding to problems, and making decisions under pressure.

When a project ends up in a dispute, a witness may hear the questions as criticism. Did I miss something? Did I make the wrong call? Did I drop the ball?

Those concerns can make a witness defensive, overly eager to explain, or reluctant to acknowledge a mistake. Part of preparation is helping the witness understand the difference between being asked about a project problem and being accused of causing it.

A useful question during preparation can be: “What are you most worried they are going to ask you?” The answer may have little to do with the legal issues you think matter most. But it can reveal what is making the witness anxious, and once you understand that concern, you can address it.

Practice the Questions You Do Not Want Asked

The best preparation is not limited to reviewing the good facts. Ask: What are the five questions we least want opposing counsel to ask?

Maybe the contractor’s project manager approved a schedule that later proved inaccurate. Maybe the owner’s notice of default did not comply with the contract requirements. Maybe an email contains language that looks much worse out of context.

Address those issues before the witness sits for a deposition. For each difficult question, understand:

·         The truthful answer

·         The documents that may be used to challenge it

·         Any earlier testimony on the same topic

·         How the witness is likely to react under pressure

Then go over that with your witness. Give them ownership in the process and insight into the bigger picture.

And practice the question the way it is likely to be asked. If the witness is worried about being blamed for a delay, do not simply ask, “Why was there a delay?” Ask the harder version they are more likely to hear from opposing counsel: “Isn't the reason the project was delayed that you failed to properly manage the schedule?”

Preparation should minimize surprises. Witnesses perform better when they have thought about the hard questions ahead of time and practiced how to answer them.

Documents Can Refresh Memory, But They Can Also Create Problems

Construction cases are document-heavy. Review the key documents with each witness. Do not rely on memory alone.

Before showing a witness a document, understand what it is, whether it has been produced, and whether it is protected by privilege or other legal protections.

A practical starting point: have the witness re-read their own emails, daily reports, and any documents they authored or signed before the preparation session. Those are the documents they are most likely to be asked about, and reviewing them in advance helps recall the context behind the words on the page.

When reviewing documents during preparation, watch for these common issues:

The witness remembers events differently than the documents reflect. That is fine, but it needs to be addressed. If the testimony differs from a document, understand why and prepare the witness to explain the difference clearly.

An email or letter contains language that sounds worse than it is. Construction projects move fast. People write in frustration, shorthand, or haste. What was dashed off in the moment can look damaging when read years later in a conference room. The witness should see those documents before the deposition rather than for the first time when opposing counsel slides them across the table.

Too many documents blur actual memory. Be careful about volume. Focus on the documents that matter most: the ones that tell the story, the ones that create risk, and the ones the witness is most likely to be asked about.

Preparation Is Part of the Project

Construction professionals prepare for every phase of a project. Testimony should be no different. A well-prepared witness understands the process, has reviewed the key documents, has thought through the difficult questions, and can walk into the room confident there will be very few surprises.

Debrán O’Neil is a litigation partner in Carrington, Coleman, Sloman & Blumenthal, L.L.P.’s construction practice group in Dallas, Texas. She primarily represents manufacturers and public and private owners and developers in connection with the construction of large commercial and infrastructure projects throughout Texas. She can be reached at doneil@ccsb.com.

The Real Groundbreaking Happens Long Before the Ceremony

 Written by Cathy Altman, Partner

I had the privilege of joining the leadership team and my fellow Trinity River Authority board members to celebrate the groundbreaking of our new general offices in Arlington.

Like every groundbreaking, it lasted only a few moments, although the surprisingly cool July weather let us linger a little longer. The hard hat and gold ceremonial shovel found their place in my new office, and before long, heavy equipment will replace the smiling faces gathered around that patch of Texas dirt.

But the real groundbreaking happened long before Friday morning.

It happened in board meetings where difficult questions were asked. It happened around conference tables where ideas were debated and refined. It happened through the persistence of leaders, staff, engineers, architects, and contractors who stayed focused on a shared vision: creating a space for the important work of preserving the Trinity River Basin for future generations of Texans.

As I stood there Friday, I found myself thinking less about the building that will soon rise from the ground and more about the people who made that moment possible. I've spent most of my career around construction projects. As a construction lawyer, I've learned that the strongest foundations are rarely the ones made of concrete.

They're built on trust. Strengthened by collaboration.

And they're sustained by leaders who understand that the greatest accomplishments are almost always the result of many people working toward something bigger than themselves. People will walk through the doors of the Trinity River Authority's new headquarters without ever thinking about the years of planning and the people who made it possible.

That's as it should be. I admire those leaders whose fingerprints are everywhere, even though their names are nowhere.

Congratulations to everyone who helped bring this project forward. I can't wait to watch the building take shape so the team at the Trinity River Authority can continue to shape the future of water in Texas.

Pinching myself that I have a front row seat — and a golden shovel whose finger smudges remind me there are always unsung heroes behind the glossy photo ops.

 

#LeadershipLessons #TrinityRiverAuthority #ConstructionLaw #Leadership #Groundbreaking #BuildingCommunities

Building the Future by Understanding the Past: ABA Forum on Construction Law’s 50th Anniversary Conference

Written by Lance Currie, Partner

As a litigator, I think of disputes in part as an exercise in competitive storytelling—you have to articulate the “why” so that a decisionmaker not only concludes you are correct, but feels it is a just outcome. The ABA Forum on Construction Law celebrated its 50th anniversary at its 2026 Annual Meeting in Chicago last month, and one of the presentations I most enjoyed was “Learning by Doing: A Survey of the Most Significant Construction Projects of the Last 50 Years and What They Taught Us,” presented by Phillip G. Bernstein (Yale School of Architecture), Charles F. Boland (Greyhawk), and Chris Noble (Noble, Wickersham & Heart, LLP). The speakers walked the audience through the most consequential projects of the past half century and the forces that drove them—technology, evolving standards of care, modular construction, sustainability, new delivery models, globalization, and the rise of mega-projects. The stories of these buildings and the speakers’ observations provide key insights for construction lawyers and their clients.

Technology and Digitization

The first major change is the technology used to design. As recently as the 1970s, drawings were hand-drafted, calculations relied on slide rules, and documents traveled by mail. The presenters trace the digital revolution through three projects: Frank Gehry’s Barcelona Fish (1992), where aerospace software was first adapted to architectural geometry; the Walt Disney Concert Hall (2003), which proved that computer modeling could translate radical forms into fabrication drawings; and One World Trade Center (2004), where full Building Information Modeling (“BIM”) models validated the technology for the largest and most complex projects. For construction lawyers, BIM models, clash detection logs, and digital coordination records could be essential evidence in delay and defect disputes—and the failure to use these tools may increasingly bear on the standard of care.

The Standard of Care: Learning from Near-Disasters

One of the more gripping sections of the presentation involved two 1970s skyscrapers that nearly failed. Boston’s John Hancock Tower suffered mass glass panel failures, dangerous sway, and a structural vulnerability requiring the secret installation of 1,500 tons of steel bracing. New York’s Citicorp Center faced a worse scenario: an engineering student’s inquiry revealed that unconsidered wind loads and unauthorized field changes to steel connections left the occupied tower at risk of collapse, prompting emergency nighttime repairs hidden from public view for years. Neither building was out of compliance with the codes applicable at the time, and both led to reformed building codes and more rigorous wind analysis requirements. They remind us that the standard of care is measured against prevailing practice at the time—and that prevailing practice is sometimes found wanting only after a crisis.

Modular Construction

Modular construction has evolved from a niche technique into a mainstream strategy for complex buildings and industrial facilities. Brooklyn’s B2 Tower used roughly 930 prefabricated modules but encountered significant delays, serving as both proof of concept and cautionary tale. Contracts for modular projects must address how risk shifts from field labor to fabrication, transportation, and integration.

Sustainability and Mass Timber

The speakers traced sustainability from the energy codes of the late 1970s through today’s certification systems like LEED, giving particular attention to mass timber. Minneapolis’s T3 building (2016)—a seven-story office using glulam and nail-laminated timber—demonstrated the commercial viability of engineered wood, and recent IBC amendments now permit mass timber buildings up to 18 stories.

Delivery Models, Globalization, and Mega-Projects

The final portion of the presentation covered the rise of Design-Build and the emergence of Integrated Project Delivery, plus the globalization of supply chains. In 1996, the federal government lifted the prohibition on Design-Build projects, which led to the Pentagon renovation project being the largest federal Design-Build project in Washington, D.C., and possibly the country. Per the Design-Build Institute of America, nearly half of all construction spending will be on Design-Build projects by 2028. Integrated Project Delivery binds owners, designers, and contractors into a single multi-party contract that shares risks and ties compensation to the success of the overall project. IPD requires a culture shift, however, away from the competitive low-bid processes familiar to many. One of the first IPD projects, the Fairfield Medical Office Building in California, allegedly involved mutual open books, a combined contingency, and joint responsibility for construction errors and design omissions. The speakers described the project as a success and a model for larger projects for the same owner. The presenters also discussed globalization as demonstrated by Apple Park, where custom glass was shipped from Germany through the Panama Canal and carbon-fiber roof panels were fabricated in Dubai. The presentation closed with mega-projects like the Big Dig and Hudson Yards. Each of these trends carries distinct legal implications: IPD’s shared-risk agreements demand a level of contractual transparency that differs greatly from current industry norms. Globalized supply chains introduce jurisdictional, tariff, and logistics risks that should be addressed during contracting. Mega-projects are by definition highly complex, though private mega-projects tend to achieve tighter cost and schedule outcomes than public ones.

Looking Ahead

I left this session a better construction lawyer. Bernstein, Boland, and Noble reminded me that every project has a story—and understanding that story is what separates the lawyer who can explain what happened from the one who can explain why it matters. The trends they identified—digitization, modularization, sustainability, evolving delivery models—are accelerating, and the legal frameworks governing construction must keep pace. But the constant across all fifty years of projects they surveyed is that the best outcomes belong to the people who understand not just the contract, but the building—how it was conceived, how it was built, and what it was meant to accomplish. Sessions like this one are a reminder that construction law is practiced at the intersection of law and real-world outcomes.

Avoiding Potential Construction Pitfalls in the Texas Property Code – Part 1: Project Completion

 Written by Tyler Wright, Associate 

This is the first in a multi-part blog series addressing potential pitfalls that project owners, contractors, subcontractors, and project financers may encounter on Texas construction projects. Texas mechanics’ lien laws have long been some of the most complex lien laws in the country, and Chapter 53 of the Texas Property Code, as many know by now, was substantively amended for the first time in decades for projects beginning in 2022. Rather than rehashing those amendments, this blog series highlights some of the lesser known (or lesser followed) provisions of the Texas Property Code that still can catch unwary parties off guard, and illustrates how proactive measures on the front end of a project can mitigate disputes later.

This first post recaps the two primary subcontractor notices that must be provided before claiming a lien and that remain applicable after the Chapter 53 amendments. Then it addresses project completion, including scenarios involving termination of the contract or abandonment by the original contractor.   

Subcontractor Notices. To preserve their lien rights, subcontractors must provide two key notices before claiming a lien under the Texas Property Code. Unpaid Claim notices under Section 53.056 must be sent by the 15th of the third month for every month a subcontractor works on a commercial project. Retainage Notices under Section 53.057 must be sent within 30 days after the subcontractor completes all of its work on the project, though they also may be included with Unpaid Claim Notices. This timing inconsistency can create a trap for both owners and subcontractors during the closing months of a project. 

Affidavit of Completion. When the project is complete, the owner may file an Affidavit of Completion to establish prima facie evidence of the completion date, which governs lien claim deadlines. The owner must file the Affidavit within 10 days of completion; otherwise, the filing date itself becomes the prima facie completion date. The owner must then send a copy of the Affidavit to any subcontractor that has already provided an Unpaid Claim Notice or a Retainage Notice, within 3 days of filing and within 10 days of any subsequent notice. For any subcontractor that previously requested notice of completion, the owner must send a copy of the Affidavit within 10 days of the request, or by the filing date, whichever is later.

A savvy subcontractor often will include a request for notice of project completion within an Unpaid Claim Notice or Retainage Notice. It is important for owners to note, therefore, if a subcontractor’s request was made at least 10 days before the Affidavit’s filing, the copy must be sent on the filing date, not within 3 days after. Failure to send the copy of the Affidavit by the applicable deadline causes the owner to lose the benefit of prima facie evidence of the completion date as to the unnotified subcontractor.

Notice of Termination and Contractor Abandonment. If the owner terminates the contract or the original contractor abandons the project, the owner must notify each subcontractor within 10 days that requested notice of termination or abandonment. The owner also must send notice to each subcontractor that previously sent an Unpaid Claim Notice or Retainage Notice, regardless of whether the subcontractor specifically included a request for notice of termination or abandonment. If the owner fails to provide notice, the affected subcontractor is excused from the Retainage Notice requirement and may file its lien for retainage by the 15th of the third month after the project is completed or abandoned, without prior notice.  

Why this Matters: Owner’s Obligation to Withhold Retainage. The owner’s notice obligations matter because they directly affect the owner’s duty to withhold retainage under Chapter 53 and provide certainty releasing retainage and closing out the project. The Property Code requires an owner to withhold retainage only for 30 days after the project’s completion, termination, or abandonment, but an owner might be wise to withhold retainage for at least 30 days. Because the statute permits subcontractors to include Retainage Notices in Unpaid Claim Notices, which are not due until the 15th of the third month, an inherent timing conflict arises at the end of the project between the required 30-day retainage withholding period and the later Unpaid Claim Notice deadline.

To mitigate this conflict, subcontractors should promptly provide Retainage Notices upon completing their work, and owners should be diligent in sending the copy of the Affidavit of Completion and any notice of termination or abandonment. Additional mitigation efforts available to owners, such as conditions precedent to payment, will be discussed later in this blog series.       

Smarter Mediation. More Efficient Arbitration. Lessons from the ABA Midwinter Meeting

 Written by Lance Currie, Partner

Four members of our construction group had the privilege of attending the ABA Forum on Construction Law’s Midwinter Meeting in Dana Point last week. The program focused on making mediation and arbitration faster, smarter, and more human-centered. Two major themes stood out: (1) preparation is key to successful mediations, and (2) counsel can influence the efficiency and fairness of arbitration proceedings.

Improving mediation outcomes

Panelists emphasized the need for early preparation, both for the mediator and our clients. As one speaker correctly noted, the actual day of mediation should be viewed as the last step in a process that starts much earlier. In our experience, the initial strategy assessment for a matter must include consideration of whether and when a negotiated resolution could achieve our client’s goals. 

By taking the time to understand our client’s objectives and to consider the obstacles to settlement, we can develop a schedule for potential mediation that allows time to overcome those challenges.  In addition to gathering both the factual and expert information needed for meaningful discussions about risks and opportunities, early conversations about potential negotiated outcomes compared to the best alternative to a negotiated agreement allow clients to see clearly the costs and benefits of settlement. Likewise, we have found that early engagement with mediators to ensure they understand the parties’ positions, legal arguments, personal dynamics, and barriers to agreement increases the likelihood of settlement.

One particularly impactful conference session focused on the neuroscience of mediation and negotiation. The panel focused on cognitive biases that impede good decision making. Confirmation bias, for example, can impose blinders, causing one to miss key points on the other side of an issue by assigning greater weight to evidence that supports a predetermined conclusion. Availability and recency bias can cause one to favor readily available information over information they may not have direct access to or that is no longer fresh in their mind. The fallacy of sunk costs often stands in the way of settlement at mediation.  Realizing that the past is done and focusing on what can be done in the future is critical to avoid throwing good money after bad. Catastrophizing means letting your emotions spiral rather than approaching an issue calmly and thoughtfully. Awareness of how these biases may impact either side’s behavior at mediation allows us to think creatively about how to present resolution options that aren’t blurred by the biases. Creative thinking involves considering alternative value levers, such as time, relationships, and risk, rather than focusing only on dollars and cents.  As advocates, we can also reframe the issues through a problem-solving lens, rather than as a zero-sum game. The best negotiated outcomes involve finding ways for all parties to work toward a shared solution.

Making arbitration more efficient

According to survey data gathered for the conference, arbitration leads over litigation in perception and outcomes when it comes to speed and confidentiality. Skepticism continues as to whether arbitration is less costly than litigation, with discovery being a primary driver of costs. Presenters discussed options for improving efficiency in arbitration with resulting lower costs, including:

• Front-load case management at the preliminary hearing: lock in tailored schedules, proportionate discovery, and clear motion practice criteria. As advocates, we have found that arbitrators are often receptive to our suggestions that streamline discovery to what we truly need to present the case, rather than following a rote playbook driven by standard rules of procedure. We often find that the final outcome turns on dozens of documents—not thousands.
• Consider dispositive motions. Despite the perception they are rarely granted, the AAA presented data showing that in 2024, 49% of dispositive motions were granted in whole or in part. From initial selection of arbitrators, through the preliminary hearing and status conferences, we evaluate the importance of dispositive issues to efficiently resolve issues and weigh the time and costs of those efforts against the potential benefits.
• Tailor the final hearing to the needs of the case. Arbitrations can afford significant flexibility for efficiently presenting summary evidence as well as fact and expert witnesses. In a recent arbitration we significantly shortened the final hearing by streamlining the expert testimony and still achieved a $22 million award for our client.

In addition to the valuable learning that conferences like those offered by the ABA Forum on Construction Law provide, our group continues to grow an exceptional network of construction lawyers, experts, and industry professionals around the country who help us better serve our clients. We look forward to learning more this March at the Annual Texas Construction Law Conference in San Antonio and in April when the ABA Forum on Construction Law celebrates its 50^th anniversary in Chicago. 

Solid Foundation: Legal Insights for Successful Construction Projects

Written by Cathy Altman, Partner

Welcome to CCSB’s construction law blog. Our aim is simple: to offer clear, practical legal guidance to support owners, developers, and construction professionals deliver projects on time, on budget, and with fewer disputes.

We believe that bolstering the technical expertise and skills of the project team with a sound legal framework—well‑drafted contracts, thoughtful risk allocation, and solutions‑focused dispute management—improves project outcomes for all stakeholders.

We’ll use this space to translate legal concepts into usable tools for the field and the boardroom.

Our focus is on helping teams build better relationships, better processes, and better outcomes to avoid litigation. But we know that many factors affect the likelihood of project success, so we’ll also share experience-driven insights for those who find themselves in the courtroom.

Learning from the Field: Utility Coordination in Infrastructure Projects

We begin with highlights from the Construction Super Conference, where Carrington Coleman partner Cathy Altman joined panelists to discuss coordination and collaboration supporting utility relocation on infrastructure projects. Lessons learned from projects in high‑growth corridors around the country confirm that challenges with utility conflicts and relocations can have enormous impacts on schedules and budgets. Three practices to mitigate those risks stand out:

Start early and be strategic. Involve utility owners at the planning stage, not after design is “done.” Many utilities operate with aging or poorly mapped assets, complex regulatory constraints, and operational limits that don’t flex—certainly not on short notice.

Early, candid conversations identify conflicts before they become costly, and they reduce the frustrations that disrupt collaboration.

Budget for reality. Utility relocations and upgrades take time and money. Underestimating either is a common source of conflict. Build on the information gathered in step one to include informed time and cost contingencies, rather than wishful thinking or pass the buck approaches.

Make the contract speak plainly. Allocate risks and responsibilities in clear terms to avoid the ambiguity that invites finger‑pointing. Clarity gives the parties a workable roadmap for adjustments and a faster path to resolve disputes. Openly discuss which party is best positioned, in expertise and resources, to mitigate and control risks. Consider statutory and common‑law constraints that may limit your ability to allocate risk by contract in some jurisdictions.

We look forward to sharing more construction‑law insights that you can put to work on your next project.