An article by Robert Incollingo originally published in the NJSBA Construction Law Section Newsletter, Vol. 17, No. 2/May 2016
Extra-contractual remedies such as bond claims, liens and statutory trusts allow attorneys to recover for clients outside the ordinary avenues of the law, where personal responsibility by fault or breach is the normal threshold to a cause of action. The experienced construction litigator always investigates a new case to see if the pleadings can include claims for extra-contractual remedies. The ordinary avenue to a remedy is discovery, and having framed the case, a discovery plan is a good next step, but sometimes a halting one. Discovery requests made pursuant to the Rules of Court will provide information on which to evaluate and prove a construction claim, but they slow the process, meet resistance, and vary in results. In formulating discovery as in pleadings, practitioners should not limit themselves to the ordinary avenues of approach. This is the thing to know: In construction litigation there is a fast track to discovery outside the rules.
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