You Should (Almost) Never Request a Jury for a Construction Case

Construction going on in the city.

Construction Contract disputes are complicated legal matters.  Both sides usually have valid points to make.  The winner is determined by the application of relatively complex facts to the law.  Such cases often involve information beyond the knowledge and understanding of the average juror.  Although it is true that most judges do not have a construction background either, judges have likely heard a prior construction case; and, as trained jurists, have a good understanding of the legal arguments that are being raised.  In addition, judges are being paid to pay attention to your case.  Conversely, the average juror has no understanding of construction or the law; typically does not want to be serving as a juror; and is missing out on a day’s pay. In light of the foregoing, I almost never recommend that my clients request a jury.

There is one area, however, where choosing a jury may be the right choice.  Until relatively recently, it was understood that a contractor had no claim for damages arising out of a bid protest.  See Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 412 (1999) (holding that the only remedy to be afforded unsuccessful bidders under the municipal bidding statutes is injunctive relief); see also Ardmare Construction Company v. Freedman, Commissioner of Administrative Services, 191 Conn. 497, 500 (“The competitive bidding statutes were enacted for the protection of the public and conferred no enforceable rights upon those seeking to do business with the government.”)  That well accepted rule was called into question a few years ago when the Connecticut Supreme Court upheld a $500,000 jury award arising out of the municipal bidding process.  Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619 (2004).

Since the Cheryl Terry Enterprises decision, there have been other jury awards involving disappointed bidders.  In upholding the jury award in Cheryl Terry Enterprises, the Connecticut Supreme Court did not overturn its prior decision in Lawrence Brunoli, Inc. v. Town of Branford.  The Lawrence Brunoli decision was readily distinguishable from the decision in Cheryl Terry Enterprises on the grounds that the Lawrence Brunoli decision was limited to claims sounding in common law breach of contract and the municipal bidding laws.  At that time, the Connecticut Supreme Court specifically stated that an unsuccessful bidder could have standing provided that “such standing must be derived from a source other than its bid submitted in response to the invitation to bid.”  Lawrence Brunoli, Inc., 247 Conn. at 412.

The result of these somewhat contradictory cases is that a jury may be better than a judge where a contractor is seeking money damages from having been an unsuccessful bidder.  The number of decisions involving damage claims against public owners for misconduct during the bidding process is still relatively small.  Most judges still believe that the prior precedent precludes all damages claims arising out of a public owner’s actions during a municipal bid.  Juries, however, are not weighted down by any preconceived notions and are not as interested in the particular cause of action being alleged.  If the jury hears a story where someone is wronged, they are likely to award damages.

If you believe that a public owner has not properly reviewed your, please feel free to give me a call.

Scott Orenstein
(860) 760-3317