Construction Delay Claims: Litigating Disputes Over Design Changes, Differing Site Conditions, and Sources of Delay

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, May 26, 2020

Recorded event now available

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Course Materials

This CLE course will guide construction counsel on effective strategies for proving or defending claims for construction delay damages. The panel will also outline best practices to minimize construction delay litigation.


Construction delays are common in the building industry, and they can result from issues ranging from permit and approval problems to price disputes to differing site conditions. Construction delays are among the most frequently litigated construction disputes, but as a legal argument, this claim is rarely well understood.

Construction delay litigation often centers on whether a delay was compensable or excusable, its impact on productivity, and appropriate compensation for resulting damages if the delay was non-excusable.

Construction counsel proving or defending damages in delay claims can arm themselves with effective litigation strategies to achieve the best outcome for their client, including leveraging clauses in the construction contract to strengthen their client's position.

Listen as our panel of construction law attorneys discusses best practices for proving and defending damages arising from construction delay claims. The panel will also discuss proactive steps counsel can take to minimize construction delay litigation.



  1. Types of construction delays
    1. Excusable vs. non-excusable
    2. Compensable vs. non-compensable
    3. Critical vs. non-critical path delays
    4. Concurrent delays and non-concurrent delays
    5. The Concept of Pacing
  2. Proving or defending delay claims
    1. Proving the causes of critical path delays
    2. Project records relevant to delay claims
    3. Use of scheduling experts
    4. Proving or defending delays claims to a jury or arbitrator.
  3. Proving or defending damages
    1. Contractor's damages for delay
      1. Extended general conditions
      2. Extended home office overhead
      3. Consequential damages
    2. Owner's damages for delay
      1. Scope of recoverable damages
      2. Liquidated vs. actual damages
      3. Consequential damages
  4. Best practices to minimize construction delay claim litigation
    1. Contract provisions
    2. Mediation of disputes
      1. During project
      2. After project completion


The panel will review these and other key questions:

  • What are the most common types of construction delay claims?
  • What factors are taken into account when determining whether a delay is excusable or compensable?
  • What are some common methods of calculating damages for delay?
  • How can well-crafted construction contracts be used to assert or defend construction delay claims?
  • What steps can owners and contractors take to minimize the likelihood of construction delay litigation?


Martin, Stanley
Stanley A. Martin

Commonsense Construction Law

Mr. Martin has been involved with the construction industry for more than 45 years, starting with an undergraduate...  |  Read More

Pierce, Timothy
Timothy L. Pierce

Managing Partner
K&L Gates

Mr. Pierce’s practice almost exclusively involves legal matters in the construction industry. He works with...  |  Read More

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