Taking Your Construction Case to a Jury: The Adequacy of Jury Instructions in Construction Disputes

• Pages: 36-50
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Michael McNamara,Gerald Zingone,Sarah Stehle
• Subject Matter: Civil Law

Published in The Construction Lawyer Volume 44, Number 2, ©2025 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction Law The Construction Lawyer Spring 2025

36

Taking Your Construction Case to a Jury: The

Adequacy of Jury Instructions in Construction

Disputes

By Michael McNamara, Gerald Zingone, and Sarah Stehle

Michael McNamara is partner, Gerald Zingone is senior counsel, and Sarah Stehle is associate at Pillsbury

Winthrop Shaw Pittman LLP in Washington, DC.

Demanding a jury trial in a construction dispute can seem appealing. After all, a jury might sympathize

with your client’s story or avoid getting lost in technical legalities the way a judge might. But deciding

to proceed with a jury trial should be based upon more than weighing traditional judge-versus-jury

dynamics. A crucial consideration—often overlooked—is the adequacy of your jurisdiction’s jury

instructions.

Many practitioners were taught to pull the jury instructions at the outset of each new case. Few actually

do. One reason: For construction disputes, the pickings are often slim. Only a handful of jurisdictions

have instructions paralleling principles of construction law that practitioners (and treatises like Bruner

& O’Connor) accept as well-established. In most jurisdictions, pattern jury instructions do not address

the complexities of construction law—issues like delay claims, contract modifications, or changed work

disputes. Instead, courts often use generalized instructions like “breach of contract” and “waiver” that

fail to capture the nuances construction cases demand. Worse, judges can be hesitant to accept tailored

“special instructions,” even when they are supported by controlling precedent.

The upshot? If you are in one of the few jurisdictions with pattern jury instructions for construction

issues, before jumping to demand a jury trial, carefully review those pattern instructions. Ask yourself:

Will these instructions help a jury understand the facts and return a favorable verdict? If not, draft

tailored instructions, back them with solid authority, and gauge whether judges in your jurisdiction are

likely to approve them. This early analysis can clarify whether a jury trial is the right call. Whether you

decide to demand a jury or not, this early exercise will provide a roadmap for tailoring your presentation

at trial—an invaluable tool for shaping your case strategy and evidence development.

This article (1) explores the mismatch between construction disputes and generic pattern jury instructions;

(2) discusses legal standards governing jury instructions, including courts’ willingness—or reluctance—to

accept custom instructions; (3) reviews the construction-focused jury instructions currently available,

including those from select states and the ABA Model Jury Instructions; and (4) analyzes critical gaps in

these instructions, exploring key issues such as owner interference, pass-through claims, delays, and extra

work disputes and offering strategies for crafting tailored jury instructions to bridge these deficiencies.

The Universe of Construction-Focused Jury Instructions

Pattern Jury Instructions Tailored to Construction Disputes Are Rare

A handful of states—–California and Utah among them, as discussed below—offer comprehensive sets

of proposed instructions addressing a broad range of issues that arise in complex construction disputes.1