Construction lawyers Jay Tobin and Bob deRosset from Young Moore and Henderson P.A. in Raleigh say they appreciate 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 abstract 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 relationships, 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 contracts, “they can make a better decision about whether to proceed or not.”
As an example, often contractors engage in joint ventures to “pool resources to take on large projects, mitigate 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 outcome of the project.
deRosset is also part of an effort to introduce collaborative 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 construction industry, where parties often have an ongoing relationship and might want or need to work together in the future, deRosset 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 agreement to work in good faith to resolve the dispute without court intervention. The agreement provides that if the parties
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 communications
exchanged during the collaborative process. This helps ensure that the lawyers and clients have a strong motivation to negotiate a good faith settlement, and provides confidence that the initial attempt to work things out will not be used against them if the matter must proceed to traditional litigation. Collaborative dispute resolution 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 resolving 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 figure out a resolution to the dispute. If the parties can agree early on, then everyone can agree to a solution before 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 inspected 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 bellwether 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 document review.” The in-person
connection helps Jay ensure important issues are not ignored, and it allows him to really
understand the story behind the litigation.