Our need will be the real creator.”  Plato, The Republic

Do you recognize that quote? Probably not. Over time, the English modified it a bit to the more recognizable adage, “Necessity is the mother of invention.”

Judges and arbitrators should embrace Plato’s message. Many cases present unique questions of law, difficult fact patterns, unusual evidentiary problems, and/or procedural challenges. Such situations call for creativity, patience, and, most importantly, cooperation. There is no case that should be viewed as insoluble or unmanageable.

The problem: The stifling of creative thinking

The CPLR, the Federal Rules of Civil Procedure, Court Rules and the rules of evidence should be read as preventing us from thinking outside the box. As judges, arbitrators, and lawyers, we are, as a rule, bound to precedent. Yet, precedent should not compel a rigid form of trial nor should it prevent us from coming up with a way or ways to effectively and efficiently present a case and get a prompt decision.

How the traditional trial format currently works

When it comes to trying or arbitrating construction cases, the traditional, formal trial format is simply impractical, cumbersome, too lengthy, and quite expensive. Imagine a construction trial or arbitration with only 50 contract items in dispute and just two exhibits per item. How long would it take to litigate?

Assume that each exhibit is individually introduced at the trial/arbitration, it could take several days to get all the exhibits marked, shown to the witness, identified, shown to counsel, and offered. Even without voir dire, it would take at least ten minutes per exhibit to be admitted. One hundred exhibits times ten minutes totals 1,000 minutes, or 16.67 hours. Aggregated, that is more than two trial days just to put the exhibits into evidence! In a traditional trial format, the document which is responsive to the plaintiff’s first exhibit may not be before the court for several days, so the connection between the two could be all but lost.

Scheduling witnesses

That is, the trier of fact is faced with the daunting task of coordinating and evaluating the testimony of the first witness for the plaintiff with regard to, for example, the failure to properly install the HVAC unit on the roof and the ensuing roof leaking problem to the opposing testimony of the defendant’s testimony on that issue. That issue will not be heard until several trial days later when the testimony of plaintiff’s witness(es) on that alleged breach will have already been lost in a sea of testimony and exhibits relating to other defects and contract breaches which have been heard in the interim. That will be the case with each of the other claims and defenses made by each party which are tried in a conventional format.

Scheduling experts

The coordination of experts during the trial/arbitration, not to mention the expense, must also be considered. Their testimony is generally squeezed in whenever there is an open bit of time based upon their availability. Sometimes taken out of turn, their testimony will be connected to some aspect of the case which may not be heard until another trial day.

Deciding the case

In such a scenario, the only certainty is that the trial/arbitration will be long and drawn out with the rebuttal of each of plaintiff’s issues heard many days after it was heard. Even counsel’s preparation of post-trial memoranda which marshal the evidence and testimony on a breach-by-breach basis, leaves the trier of fact with putting the relevant pieces together by matching apples to apples. Ultimately, a decision will be handed down in a format which analyzes the alleged breaches one at a time. However, the disjointed nature of the task invariably leads to an unnecessary delay of, and potential errors in, the decision.

Rethinking the trial process

So, how can the process be streamlined to a point that a two to three-week trial can be fully and fairly litigated in two or three days?

The answer is simple. Do not try the full case.

Instead, try every alleged breach separately and fully as a mini-trial/arbitration within the larger claim. That is, break out each claim under the contract. This will give the trier of fact the ability to efficiently keep the relevant pieces of the claim – pro and con – together and decide the issue then and there.

To do that, the following steps offer a model to accomplish the mini-trial/arbitration format.

Prepare a separate page for each claim. Each page will then contain:

  • A brief description of the claim (including the relevant section of the contract),
  • One or two sentences describing each party’s position,
  • The amount each party claims is due, if any, and
  • The amount awarded.

Documents supporting and opposing each claim should be separately tabbed for use by the trier of fact, counsel, and the witnesses in a separate notebook for each with the exhibits and the relevant exhibits should be noted on the page for each claim. Prior to the trial/arbitration, the documents should be stipulated into evidence. Without a jury, the trier of fact should be able to discern the relevance of the exhibit as each claim is heard.

Benefits of the new trial/arbitration approach

Since this is a unique procedure, it can be conducted in a more relaxed, comfortable manner, such as around a conference table. The flow of the day’s proceedings can be as follows:

  1. All witnesses necessary for that day’s proceedings should be present and sworn in at the commencement of the day’s proceeding.
  2. Starting with the first claim, each side can, if it chooses, give a 30-second opening statement.
  3. Then, the witness(es) knowledgeable of that claim, already under oath, can speak to the merits of the claim with the opposing side’s witness responding. There should be no witness preclusion. All witnesses hear the other’s testimony so that all points can be heard quickly and immediately. In this format, witnesses and counsel are able to point to exhibits they want the trier of fact to consider. Counsel may inquire to be sure the necessary information is presented. Any expert statements should be included in the exhibit notebook and referred to on the claim sheet.
  4. After that, the trier of fact may ask questions of the witnesses.
  5. If counsel has nothing further to add, the trier of fact then immediately rules on that claim by granting the claim, in whole or part or denying it. The determination will be noted on the claim sheet with the trier of the fact’s initials and an accompanying tally sheet with the aggregate amount to be awarded which should be signed by the trier of fact will reflect the decision. That is, the marked and initialed claim sheets for each claim constitutes a part of the decision on the case.
  6. The total would then be reduced to judgment.
  7. If counsel fees are at issue, each side would be given the opportunity to submit on that point.

The time for any one claim should be no more than 15 minutes; and generally, it will be less!

Withdrawn or compromised claims

One thing that happens in the course of this process is that, based on the prior rulings, some claims may be withdrawn or compromised. Although it is an adversary proceeding, the format is conducive to a more collaborative approach addressing each claim.

Background on the proposed new trial/arbitration approach 

The methodology suggested in this article was utilized in a construction case when I sat in the Commercial Division, of the Supreme Court, Nassau County. It enabled me to deal with the 67 separate claims which were encompassed in plaintiff’s seven causes of action. The claims ranged from $1,188 to $51,896. The first claim was heard on the morning of August 29. The last claim was heard by mid-day on August 31. So, although the method I employed was more than 25 years ago, it can be just as effective today.

In the context of an arbitration, the matter can be heard more expeditiously and, thereby, inexpensively. The advantage to construction litigators and clients is clear. This becomes even more apparent when it is remembered that an arbitration can be scheduled and decided much more quickly than a trial in the court.

I highly recommend it.


Reprinted with permission from the March 20, 2023 edition of the NEW YORK LAW JOURNAL © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected]. # NYLJ-3082023-581429


Hon. Leonard B. Austin is a retired Associate Justice of the Appellate Division, Second Department, where he served for nearly thirteen years. Prior to his Appellate Division tenure, Judge Austin served in a matrimonial part and, for more than nine years, in the Commercial Division. In 2023, Judge Austin was voted a Top 10 Arbitrator in the New York Law Journal “Best Of” survey for the second year in a row. He is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to hear cases throughout New York State.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. via email at [email protected] or via telephone at (800) 358-2550.