Don’t Just Check the Box: Drafting Construction Claims that Prove and Persuade
Category | Briefing Papers
By Hugh D. Brown & Zachary E. Coppola
Hugh Brown and Zachary Coppola are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or Hbrown@fwhtlaw.com. Zach can be reached at 612.359.7667 or ZCoppola@fwhtlaw.com.
Written claims in construction disputes should be viewed as more than just formalities or paperwork hurdles.[1] They’re strategic documents that serve both as negotiation instruments and as foundational evidence in any potential arbitration or litigation.
Most modern construction contracts require written notice (with certain exceptions) as a prerequisite to making a claim for an increase in the Contract Price or Contract Time. In our practices, we often find that contractors view claim letters as boxes to check: cite the spec, attach some basic supporting documentation, and send it off. Of course, this information must be included, but a well-crafted claim letter does more. It primes the owner’s mindset for a cooperative resolution, frames the narrative, anchors expectations, and preserves evidence contemporaneously—increasing the likelihood of a successful negotiation, and providing valuable evidence if the dispute escalates to litigation or arbitration.
This briefing paper highlights three dimensions of effective claim letter drafting beyond technical compliance with a contractual notice requirement: (1) their evidentiary function and role in preventing disputes to begin with, (2) the psychological techniques that improve their persuasive power, and (3) practical drafting principles that increase clarity, credibility, and consistency with the underlying legal theories that may be advanced in an eventual lawsuit. Armed with these tools, contractors and their counsel can better position themselves for resolution—or, if negotiation fails, for the fight that follows.
I. PURPOSE AND STRATEGIC ROLE OF CLAIM LETTERS IN CONSTRUCTION PROJECTS
A. Evidentiary Function of Claim Letters
Besides meeting contractual requirements, claim letters serve a dual secondary purpose: they advance the contractor’s position in negotiation and simultaneously build the evidentiary record for potential litigation. In any dispute, contemporaneous documentation is more credible and admissible than reconstructed evidence. There is a powerful inclination on the part of decision-makers to assume that a party truly damaged by acts of the other party will say so, loudly and clearly, at the time of the acts. The presence of such a letter satisfies that expectation. Its absence will raise questions and suggest that a claim is a post hoc means of recovering from poor performance or a bad bid. A claim letter that cites relevant provisions, ties delays to specific acts or omissions, and includes backup documentation can later serve as a persuasive exhibit at mediation, arbitration, or trial.
In addition, detailed claims put the ball back in the owner’s court. If a claim letter states a fact, and that fact is not denied in a response, there will be a tendency on the part of decision-makers to find that this fact is credible. After all, if it were untrue, the thinking goes, it would have been disputed in the response.
Takeaway: Well-drafted detailed claim letters not only strengthen a contractor’s position in negotiations but also serve as powerful evidence if a dispute escalates—helping to establish credibility, shift the burden of response to the owner, and document the contractor’s position when it matters most.
B. Facilitate Quick Resolution by Enabling Mitigation and Providing Certainty for Owners
A properly timed and framed claim letter can also help mitigate damages and provide clarity. By alerting owners to emerging issues—whether delay, disruption, or scope changes—contractors allow owners to explore mitigation options. This reduces exposure for both parties. Equally important, clear claim letters give owners certainty. Rather than vague grumblings or retrospective demands, a structured claim with supporting facts and a clear request enables the owner to assess its position, investigate causes, and respond meaningfully. In this way, claim letters become tools not only of advocacy, but also of project management and dispute avoidance.
Takeaway: A clear and timely claim letter doesn’t just advocate for the contractor—it helps the owner manage risk, explore mitigation options, and avoid disputes by providing the information needed to address issues before they escalate.
II. PSYCHOLOGY BASED TECHNIQUES TO IMPROVE EFFICACY OF CLAIM LETTERS
Claim letters are often the starting point of construction disputes and can have a significant effect, for better or for worse, on the subsequent course of events. A well-drafted claim letter functions as a first impression tool that helps shape subsequent negotiations. As such, certain psychological principles can inform techniques that will increase the likelihood that an owner comes to the table ready to negotiate in good faith.[2] These techniques, which include priming, narrative framing, and anchoring, are straightforward to understand and can give contractors a competitive edge if incorporated into their claim letters.
Takeaway: Because claim letters often set the tone for a dispute, using psychological techniques like priming, framing, and anchoring can increase the chances of early resolution by encouraging the owner to engage in good-faith negotiations from the start.
A. Avoiding Adversarial Priming
Because the language and tone of a claim letter can influence how the recipient perceives and responds to the claim, drafters should strategically apply psychological principles such as priming to shape those perceptions. Priming is defined as “the effect in which recent experience of a stimulus facilitates or inhibits later processing of the same or a similar stimulus.”[3] Put more simply, a person is “primed” when they perceive something (i.e., read, hear, touch, smell, etc.) that later influences their behavior. For example, one study determined that a group of people exposed to the name of a famous racecar driver later performed an unrelated reading task faster than a group of people who were not similarly exposed.[4]
Accordingly, in the claim letter context, drafters should incorporate positive priming as a first step to facilitating a successful negotiation process. For example, drafters should be sure that claim letters reinforce that the stated claim is “fair” and “reasonable” under the circumstances. Likewise, drafters should reiterate that they want to work “cooperatively” with the owner and that all parties should keep an “open mind” moving forward towards a resolution. This kind of language subtly primes the owner to view the claim more favorably and to approach the negotiation with a more constructive and less adversarial mindset.
At the same time, it is equally important that drafters avoid negative priming, as doing so can derail a negotiation before it even begins. Thus, drafters should steer clear of language that promotes adversarial mindsets or that primes an owner to expect that a negotiated resolution will not occur. As such, language such as “if you do not pay this claim” or “we will proceed to litigation if you do not pay this claim” should be actively avoided, at least to begin with.[5] Due to this, drafters should actively incorporate “positive” priming to facilitate an efficient resolution and carefully scrutinize their letters for any “negative” priming that may act as a psychological roadblock to a good-faith negotiation process. Avoid insults and accusatory language. The goal is to sound firm but cooperative. A letter that sounds like an ultimatum may backfire—particularly if read by an owner’s project manager before it reaches legal counsel. Keep the language neutral and solution-oriented, even when asserting strong claims. We have yet to see a situation where insults encourage the other party to open their wallets.
Takeaway: The language used in a claim letter can shape how the owner reacts, so drafters should use positive, cooperative language to encourage a productive negotiation—and avoid wording that sounds aggressive, legalistic, or confrontational, which can shut down discussions before they start.
B. Utilizing Narrative Framing to Control the Story
Some claim letters merely state the relevant facts without providing any background context or a coherent narrative. This is a missed opportunity because human beings literally understand reality by creating stories with a coherent narrative form.[6] Without narrative, words on a page lack persuasive value because the reader may struggle to process them in a meaningful way. In fact, studies have shown that the earlier a party presents a clear narrative integrating law and fact, the more likely they are to reach a quick settlement that resolves the dispute.[7] Due to this, drafters of claim letters should be sure to tell the factual “story” of their claim in a way that is both human and coherent.
As to the human factor, drafters should, for example, incorporate the names of actual persons whose actions or inactions may have caused delays. Thus, if a delay arose because a specific person working for the owner was supposed to coordinate haul-road access but failed to do so, tell that story in detail using the employee’s name rather than making general statements about the owner’s failure. Doing so not only helps express your message clearly, but will serve to increase the evidentiary value of the document if the dispute ends up in litigation or arbitration. On this point, the more detail that can be included will reduce the amount of time attorneys need to spend trying to figure out such facts on the back-end should the dispute escalate.
As to coherence, make sure that the narrative has a clear beginning, middle, and end. Thus, going back to the haul-road example, do not start the story with the failure to coordinate access to the haul-road. Instead, start the story at its beginning by telling why haul-road access is essential to timely completion of the project in the first place and describe the owner’s duties to coordinate such access. Then, after detailing the owner’s failure by making specific references to the individuals who were supposed to coordinate access, ensure a clear ending by detailing the consequences faced by the contractor as a result of the owner’s failures. With these narrative techniques, drafters can craft claim letters that are not only more coherent, but also frame the story of a dispute from the get-go should it ultimately proceed to litigation.
Takeaway: To be persuasive and effective, claim letters should tell a clear, detailed, and human story—one that names key individuals, follows a logical narrative structure, and helps the owner understand both what went wrong and why it matters, while also laying a strong foundation for any future dispute resolution. This narrative approach increases the likelihood of payment by making the claim more relatable, harder to ignore, and easier for the owner to justify internally when evaluating whether to approve compensation.
C. Strategic Use of “Anchoring”
Another strategy drafters can use to turn out more effective claim letters is to incorporate “anchoring” as a means to shape later outcomes. In psychology, the anchoring effect refers to the phenomenon that people make subsequent decisions based off an initial anchor that may be completely irrelevant under the circumstances.[8] For example, one study split participants into two groups, where the first group was asked if Mahatma Gandhi died before age 9, and the second asked if he died before age 140.[9] After, the participants were asked to guess the age Mahatma Gandhi actually died. Demonstrating the power of anchoring, the first group guessed an average age of 50, while the second group guessed an average age of 67.
In the context of claim letters, this study suggests that the contents of a claim letter will serve as an anchor point for later negotiations. The implications of this are far-reaching, but start with the fact that claim letters should present credible, well-supported monetary impacts to serve as effective negotiation anchors. Recognize that the initial number sets the tone for the remainder of the negotiation, and that, all else being equal, an adversary is more likely to willingly pay a given amount if it has been preceded by a higher initial demand than by a lower one. One note of caution – although this principle suggests that no supportable damages should be left out of claim letters, drafters should avoid unrealistic initial positions that trigger rejection or skepticism. To do so may “anchor” owner concerns about the reliability of all that is to follow.
Takeaway: By strategically using anchoring, drafters can influence the trajectory of settlement discussions—setting a credible, well-supported monetary figure in the claim letter that frames the owner’s expectations and increases the likelihood of a more favorable recovery—so long as the initial demand remains reasonable and defensible.
III. PRACTICAL DRAFTING GUIDELINES FOR CONSTRUCTION CLAIM LETTERS
A. Documentation and Evidence Inclusion
Attach or reference project schedules, daily reports, meeting minutes, correspondence, and any contemporaneous documentation that supports the claim. Where possible, tie the documentation directly to the narrative: “As shown in the April 12 daily report (attached), our crews were unable to mobilize due to the delayed delivery of structural steel.” Always cite the relevant contract clauses. This not only reinforces the contractor’s legal entitlement but also shows that the claim is grounded in the terms both parties agreed to.
Takeaway: Enhance credibility by providing specific, detailed backup.
B. Demonstrate Strength by Applying Facts to Eventual Litigation Theories
Finally, drafters must think ahead. If the claim at issue cannot be resolved through negotiation, a claim letter written mid-project may become Exhibit A in a lawsuit months or years later. That means the theories and facts stated in the letter must be consistent with what the contractor will later argue in mediation or litigation. Any inconsistency will be used by opposing counsel to cast doubts on the credibility of the claim. In other words, “you told us then that this was a design issue, but now you’re saying it was a coordination issue – which is it?”. For these reasons, avoid speculative or overly broad allegations. Stick to verifiable facts and supportable interpretations of the contract. As just noted, inconsistent or exaggerated letters can damage credibility and undermine later legal arguments. Although contractors often can and do draft these documents competently without legal assistance, it can be particularly valuable to obtain legal input when drafting a claim letter.
Takeaway: Ensure that the facts presented are consistent with any potential legal theory of recovery. If necessary, consult qualified construction counsel to evaluate potential theories and present facts supporting those theories.
IV. CONCLUSION: REFRAMING CLAIM LETTERS AS STRATEGIC LITIGATION AND NEGOTIATION TOOLS
Claim letters are not merely administrative boxes to check. They are strategic tools that shape both the negotiation landscape and the litigation record. When crafted with intention, they prime perceptions, frame the narrative, and anchor expectations—all while preserving key facts and legal positions. Therefore, contractors should view every claim letter as serving two audiences: the owner deciding whether to resolve the issue now, and the arbitrator or judge who may review the document later. With this dual purpose in mind, and by applying the techniques outlined above, contractors and their counsel can significantly increase the impact and effectiveness of their claims.
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[1] The term “claim” is used here in a general sense to refer to any written demand for additional time, compensation, or other relief. Depending on the specific language of the contract at issue, this may take the form of a formal “claim,” a change order request, or another type of notice. Drafters should ensure that the label and format of the submission comply with the procedural requirements of the governing contract.
[2] See, Carrie Sperling, Priming Legal Negotiations Through Written Demands, 60 Cath. U. L. Rev. 107 (2011).
[3] https://dictionary.apa.org/priming
[4] C. Neil Macrae et al., On Activating Exemplars, 34 J. OF EXPERIMENTAL SOC. PSYCHOL. 330, 345-46 (1998).
[5] If repeatedly ignored, it may be necessary to explicitly threaten litigation.
[6] Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 383 (1996).
[7] Gary Paquin & Linda Harvey, Therapeutic Jurisprudence, Transformative Mediation and Narrative Mediation: A Natural Connection, 3 FLA. COASTAL. L.J. 167, 170 (2002).
[8] Thomas D. Gilovich & Dale W. Griffin, Judgment and Decision Making, in HANDBOOK OF SOCIAL PSYCHOLOGY 552-54 (Susan T. Fiske et al. eds., 5th ed. 2010).
[9] Strack, Fritz; Mussweiler, Thomas, Explaining the enigmatic anchoring effect: Mechanisms of selective accessibility, 73 (3) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 437–446 (1997).