Usually, capital disputes before triers of fact (a judge or a jury),

	Scott Witzigreuter's civil litigation practice focuses on construction litigation and commercial contract litigation. He is a partner at the law firm Weinberg, Wheeler, Hudgins, Gunn & Dial.

in which evidence is presented in the form of documents and witness testimony, arise in the arbitration context. "Trials" in a court of law and before a judge or jury involving capital disputes are rare. In an arbitration, the parties present their evidence to one or more individuals already well educated in the arena of capital disputes. (At least the arbitrators should be well educated; if not, the parties have picked the wrong arbitrators). In addition, the rules of evidence are less restrictive than in a court environment. Neither of these arbitration maxims is true in a courtroom setting, however, which requires the attorneys, their clients and the experts to extricate themselves from an arbitration mindset and make some fundamental changes in their approach to a trial.

First, and probably most obvious, the trial presentation should take into consideration the relative lack of knowledge and experience of the triers of fact. Whether a jury or a judge, it is likely that the party hearing the arguments and evidence will have no prior experience in the capital improvement industry, and definitely not with capital improvement claim methodologies and defenses. These potential triers of fact will know nothing of the bid process, estimate development, project delivery methods, the roles of the various parties to a capital improvement project, anticipated productivity and realized productivity and project scheduling. As a result, the plaintiff usually bears a heavy burden in educating the jury about not only the facts that give rise to its claim, but the typical development, pricing and progression of a capital improvement project.

For example, a jury may understand what a "bid" is only in the most general of terms. While in an arbitration a claimant may need only to provide the arbitrators with the bid amount and the logic used to generate the bid, a capital claim plaintiff needs to explain what a bid is, what it is used for, the process of generating a bid, the risks associated with poor bids, the historical bidding process of the plaintiff, an explanation of applied productivity rates, and finally the bid amount. To be blunt, a plaintiff in a capital trial must assume a zero knowledge base and anticipate every piece of information that the trier of fact might need when evaluating a claim based on a bid or refuting a bid-based defense. Obviously, this approach results in greater consumption of time and energy and, frankly, can bore the trier of fact to tears. The alternative, however, is a confused trier of fact, judge or jury, that cannot understand the capital improvement process, much less a capital improvement claim or defense.

Second, and what should be equally as obvious but often times is overlooked, the attorneys participating in a capital improvement trial must know the rules of evidence. The proliferation of arbitrations, while generally a positive development, has led to the unintended consequence of blunting attorneys' skills in introducing evidence via the more formal requirements of a trial. This manifests itself primarily in the introduction of documentary evidence. In order to introduce a document at trial, a proper foundation for the document must be laid and the document must be authenticated, usually by the author or recipient of the document, but also via a corporate representative or records custodian as part of the business record exception. This can be onerous and overlooked because these levels of formalities typically are not required in arbitration. Again, the stricter rules of evidence of a capital improvement trial often result in a more lengthy process that requires calling additional witnesses simply to authenticate documents that the parties likely would call if the dispute was being adjudicated by arbitrators.

In addition to the introduction of documents, attorneys need to be mindful of the more restrictive nature of witness testimony. In an arbitration, attorneys and their witnesses generally enjoy freer rein in presenting their testimony; the testimony tends to be more narrative with fewer questions and when questions are asked, they tend to be more leading than should be allowed under most evidentiary standards. During a trial, direct witness testimony (as opposed to cross examination) becomes more difficult to conduct and requires greater preparation time, i.e. more "rehearsal." On the flip side, opposing counsel must challenge direct testimony and questions on evidentiary objections more often than he or she might in an arbitration. Again, while this might seem obvious, a capital improvement trial requires attorneys to sharpen their evidentiary skills and divest themselves of the arbitration mindset.