YOUNG MOORE AND HENDERSON ATTORNEYS
Jay Tobin and Bob deRosset focus on knowing clients
and construction industry in resolving legal challenges
North Carolina Construction News special feature
Construction lawyers Jay Tobin and Bob deRosset
from Young Moore and Henderson in Raleigh say they ap-
preciate the importance of knowing their clients and the
industry in resolving a diversity of legal challenges.
Both believe that new alternative dispute resolution
approaches could help to reduce litigation costs and
achieve better results, but neither is afraid to fight hard
for their clients and try cases when necessary.
deRosset focuses primarily in construction, business,
and product liability law. He finds satisfaction in working
with clients who build and create real things. “So much
time in the legal world, we work with documents and ab-
stract ideas,” he says. “I enjoy the opportunity to see
ideas become physical objects in the real world, and to
be part of that process.”
He understands the importance of industry relation-
ships, and the fact that often contractors “simply don’t
have a choice about what they sign or agree to,” but says
if they can understand the legal implications of their con-
tracts, “they can make a better decision about whether to
proceed or not.”
As an example, often contractors engage in joint ven-
tures to “pool resources to take on large projects, miti-
gate risk, and do things they couldn’t ordinarily do on
their own.” But it is important to ensure the joint venture
relationship doesn’t saddle a participant with problems
from a partner gone bad.
In at least one case, deRosset was able to pursue his
client’s claim against all parties to a joint venture and take
advantage of the joint venture relationship to pursue the
party with the deepest pockets, even though that party
erroneously believed it could not be liable for the out-
come of the project.
deRosset is also part of an effort to introduce collabo-
rative law to the construction industry in North Carolina.
In collaborative dispute resolution, parties work through
their own legal counsel to “arrive at a solution that is
based on their joint interests in having a resolution, rather
than one party winning or losing.”
This collaborative approach can be ideal for the con-
struction industry, where parties often have an ongoing
relationship and might want or need to work together in
the future, deRsset says.
In the collaborative process, parties agree to share all
relevant and pertinent information “without the necessity
of resorting to the discovery process” and they agree to
consider using joint expert consultants.
At the outset, both sides enter into a written agree-
ment to work in good faith to resolve the dispute without
court intervention. The agreement provides that if the par-
ties cannot work out a solution collaboratively, then they
will find new lawyers to take the matter to court. The
agreement also provides for confidentiality of communi-
cations exchanged during the collaborative process. This
helps ensure that the lawyers and clients have a strong
motivation to negotiate a good faith settlement, and pro-
vides confidence that the initial attempt to work things
out will not be used against them if the matter must pro-
ceed to traditional litigation. Collaborative dispute resolu-
tion can also allow parties to rapidly resolve issues at a
lower cost than traditional litigation.
Jay Tobin says another alternative dispute resolution
model, “rolling mediation,” can also be effective in resolv-
ing disputes.
In this approach, the parties agree at the outset to hire
a mediator who would work as a kind of “special master,”
focusing on expert testimony. The experts for each side
get together to figure out common ground and to try and
narrow the dispute. The goal is to “see if they can come
up with some kind of consensus.”
“If the experts can reach consensus on the cause of
the problem, the parties can be in a better position to fig-
ure out a resolution to the dispute. If the parties can
agree early on, then everyone can agree to a solution be-
fore legal costs spiral out of control.”
However, Tobin says there are times when he believes
clients need to go all the way to trial.
In one case he tried, his client received claims from
20 separate homeowners asserting they experienced
cracking because of blasting operations.
But Tobin knew his client was careful in its practices,
through using seismic studies and planning to avoid any
damage to surrounding structures. When experts in-
spected the houses, they discovered inconsistencies that
proved the cracks did not arise from the blasting. So he
and his client agreed to try one of the 20 claims as a bell-
wether case. They won a total defense verdict, and
ended the threat from the remaining claimants.
Tobin says in 27 years of practice, he has learned that
it is vital to spend time and really know his clients. “You
have to sit down and meet clients in person,” he said. “It
is a mistake to do it all by emails, phone calls, and docu-
ment review.” The in-
person connection
helps Jay ensure im-
portant issues are
not ignored, and it al-
lows him to really
understand the story
behind the litigation.
Bob deRosset can be reached at (919) 861-5099 or by
email at Bob.deRossset@youngmoorelaw.com. Jay Tobin
is at (919) 861-5127 or Jay.Tobin@youngmoorelaw.com
The North Carolina Construction News — Fall 2018 — 13