WASHINGTON, D.C. – With more than three decades in construction law, Jeffrey R. Gans, partner, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C., has presided over many jury trials. He’s seen the good, the bad, and the inexplicable. Third Thursday sat down with Gans to go over some of the same territory he discussed at last year’s CSC—specifically should you demand a jury trial?
Third Thursday: What’s more common in construction disputes—bench trials or arbitration?
Jeffrey Gans: The trend in construction agreements is to select arbitration. Those are not always binding, and you can always agree to not enforce that. However, assuming you have the choice, it depends on the complexity of your case. That could cut 22 ways.
Third Thursday: What are the main concerns?
Gans: There’s a lot of concern among practitioners that juries are not in a good position to understand a complex construction case. Sometimes that’s in your favor if there are technical failures in your compliance with what might be viewed as arcane contract principles, and the jury is not particularly interested in those things.
Third Thursday: What’s most important with juries?
Gans: The presentation of your witnesses is key. You have to understand how they will be perceived by a jury. Are they very relatable to members of your panel, or are they someone who just will not connect with the jury in telling the story?
Third Thursday: How relatable have your witnesses been throughout the years?
Gans: The one advantage you have in construction, especially if you represent contractors and subcontractors, is that a good number of your people who work on projects are very down to earth folks. They come across as straight talkers and not polished or deceptive. Of course, some are just not good storytellers, and they’re very nervous having to speak in front of people. Those are variables and some primary initial considerations.
Third Thursday: Any case examples come to mind?
Gans: It’s not a construction case, but you might remember the Johnny Depp and Amber Heard trial. It was pretty complicated—very high profile. That trial boiled down to who told the better story, who connected with the jury more effectively. In the end, observers and commentators thought that Mr. Depp did, and he did substantially better in that situation. That doesn’t necessarily mean that the facts and law were on his side. It just meant that he told his story in a way that was more convincing than she told her story. You need a witness who can convince or elicit the sympathy of a juror. That’s especially true if you have a case that’s incredibly difficult for the jury to understand.
Third Thursday: What issues are tough to understand in your experience?
Gans: Contractual principles and scheduling issues on construction projects can be horribly complex—very difficult to understand even by those who know how to do it.
Third Thursday: How should an attorney deal with these complexities?
Gans: You can get around those things by presenting the jury with much more simple narratives, like contractors deserve to be paid for the work they’ve done. One thing that is not confusing for people is that if you do work for somebody, you should be paid for that work. Jurors will sometimes say, ‘I’m not exactly sure what happened on that construction project that finished 2.5 years ago and is in the the wilds of Wyoming, but I’m convinced that this contractor did a bunch of work that he didn’t get paid for. And so I think the owner should pay.’
Construction stakeholders will once again have the opportunity to parse out the issues that matter when Construction Super Conference convenes at the Hyatt Regency in Huntington Beach, Calif., scheduled for Dec. 1-3, 2026.
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