The U.S. Army Corps of Engineers’ Middle East District recently hosted a 4-day contract litigation workshop taught by a senior USACE attorney to ensure that those attending are prepared to take cases through to the trial process when necessary.
The workshop, taught by Tom Gourlay, USACE’s Engineer Chief Trial Attorney, walked lawyers and paralegals through the trial process from document preparation to questioning witnesses and ended in a mock trial. Lawyers from other Districts also participated in the workshop.
According to Gourlay, although only about 15 percent of all cases go to trial, it’s important to be prepared to take them all the way through the process. This is especially true for MED’s Office of Counsel which handles approximately 30 percent of all USACE cases currently before the Armed Services Board of Contract Appeals, the primary federal forum which hears the cases.
“For most lawyers, knowing the law is naturally important but it’s really the practical stuff that helps you if a case goes to trial,” said Gourlay. “We focus on how to prepare documents, what to expect during the trial process, how to depose a witness. These things win cases and I’m really gratified to see the amount of support I’ve been given in conducting the workshop. I realize this takes a lot of time away from an office with a busy caseload so I’m glad they were able to support it.”
Although MED’s lawyers have varying degrees of trial experience, they agreed the workshop was able to offer something for everyone.
Aimee Rider, one of the District’s newer attorneys, appreciated that the course detailed every single step of ASCBA litigation to include pre- and post-litigation responsibilities.
“I have worked on bits and pieces of ASBCA litigation at various stages, but this training offered a broad overview from start to finish. The training helped introduce me to the areas I have zero experience in and added to my perspective of the areas that I have worked on,” she said.
Dan McConnell, another MED attorney, has significantly more trial experience but equally found the workshop to be well worth his time.
“We were really lucky to get Mr. Gourlay down here; he’s really got some great institutional knowledge to draw on and with him retiring soon, we don’t want that to leave with him.” said McConnell. “I think the biggest takeaway we all got from the workshop was the importance of preparation and the amount of work that goes into that. It also gives you a new appreciation for the support staff and all the behind-the-scenes work they do in order to prepare for a trial. All the logistics of getting witnesses there, organizing all of the evidence and documents, it’s a lot of work. Sometimes the paralegals will find things in case documents we may not have picked up on.”
McConnell also noted some of the reasons that cases would go to trial rather than settle and why MED tends to have a higher volume of cases that end up before the ASBCA.
“There are multiple reasons a case might end up at trial, sometimes we may want to written decision that contributes to future case law. We also have a high volume from arising from the wind-down in Iraq and Afghanistan. Since many of our contractors are not subject to U.S. criminal law, they often have nothing to lose by submitting claims against the U.S. government, even if those claims lack merit,” he said.
In addition to the legal staff, several engineers in MED participated in the mock trial both to assist the office of counsel and give them experience as potential witnesses.
“Most people not in the legal profession don’t get that kind of experience unless they have to go to court. It’s great that they were able to participate and to gain an understanding of what it’s like if they actually have act as witnesses in a real case,” said Gourlay.