Litigation isn’t top of mind at the outset of a construction project, but smart contracting means planning for it anyway. Early in the process, parties can build contractual terms that anticipate potential disputes and help reduce costs and headaches down the road.

Contracts offer more than promises about deliverables—they’re an opportunity to set the rules for how disputes will be handled, including the most expensive phase of litigation: discovery. Parties can gain clarity and efficiency by thoughtfully defining how discovery will work (and how far it will go).

Key takeaways:

• Don’t overlook dispute resolution clauses. Terms like mediation, arbitration, and forum‑selection can be decided now rather than fought over later.
• Tailor the discovery process in the contract. For example: define when preservation obligations kick in; limit document categories, custodians, or date ranges; set geographic limits for depositions; agree on cost‑sharing.
• Be cautious of overly tight limitations. While caps on discovery can save money, they might also hamper a party’s ability to present or defend a claim if a dispute turns serious.
• Align discovery limits with the size or nature of the contract or dispute—for instance, fewer depositions for smaller claims—to keep the process proportional.
• The real power lies in being realistic up front. A clear, balanced assessment of what might go wrong—and how it will be handled—can save significant time and money if things go wrong.

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