{"id":5394,"date":"2025-07-25T16:01:07","date_gmt":"2025-07-25T16:01:07","guid":{"rendered":"https:\/\/www.fwhtlaw.com\/blog\/?p=5394"},"modified":"2025-07-25T16:02:34","modified_gmt":"2025-07-25T16:02:34","slug":"dont-just-check-the-box-drafting-construction-claims-that-prove-and-persuade","status":"publish","type":"post","link":"https:\/\/www.fwhtlaw.com\/blog\/2025\/07\/25\/dont-just-check-the-box-drafting-construction-claims-that-prove-and-persuade\/","title":{"rendered":"Don\u2019t Just Check the Box: Drafting Construction Claims that Prove and Persuade"},"content":{"rendered":"
By Hugh D. Brown & Zachary E. Coppola<\/h6>\n
Hugh Brown and Zachary Coppola are members of the firm\u2019s Construction Law Department. Hugh can be reached at 612.359.7663 or Hbrown@fwhtlaw.com<\/a>. Zach can be reached at 612.359.7667 or ZCoppola@fwhtlaw.com<\/a>.<\/h6>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Written claims in construction disputes should be viewed as more than just formalities or paperwork hurdles.[1]<\/sup><\/a> They\u2019re strategic documents that serve both as negotiation instruments and as foundational evidence in any potential arbitration or litigation.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.\u00a0 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. \u00a0Of course, this information must be included, but a well-crafted claim letter does more. \u00a0It primes the owner\u2019s mindset for a cooperative resolution, frames the narrative, anchors expectations, and preserves evidence contemporaneously\u2014increasing the likelihood of a successful negotiation, and providing valuable evidence if the dispute escalates to litigation or arbitration.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u2014or, if negotiation fails, for the fight that follows.<\/p>\n

I. PURPOSE AND STRATEGIC ROLE OF CLAIM LETTERS IN CONSTRUCTION PROJECTS<\/strong><\/p>\n

A. Evidentiary Function of Claim Letters<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Besides meeting contractual requirements, claim letters serve a dual secondary purpose: they advance the contractor\u2019s 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.\u00a0 The presence of such a letter satisfies that expectation.\u00a0 Its absence will raise questions and suggest that a claim is a post hoc means of recovering from poor performance or a bad bid.\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In addition, detailed claims put the ball back in the owner\u2019s court.\u00a0 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.\u00a0 After all, if it were untrue, the thinking goes, it would have been disputed in the response.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:\u00a0 <\/strong>Well-drafted detailed claim letters not only strengthen a contractor\u2019s position in negotiations but also serve as powerful evidence if a dispute escalates\u2014helping to establish credibility, shift the burden of response to the owner, and document the contractor\u2019s position when it matters most.<\/em><\/p>\n

B. Facilitate Quick Resolution by Enabling Mitigation and Providing Certainty for Owners<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A properly timed and framed claim letter can also help mitigate damages and provide clarity. By alerting owners to emerging issues\u2014whether delay, disruption, or scope changes\u2014contractors 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.\u00a0 In this way, claim letters become tools not only of advocacy, but also of project management and dispute avoidance.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway: <\/strong>\u00a0A clear and timely claim letter doesn\u2019t just advocate for the contractor\u2014it helps the owner manage risk, explore mitigation options, and avoid disputes by providing the information needed to address issues before they escalate.<\/em><\/p>\n

II. PSYCHOLOGY BASED TECHNIQUES TO IMPROVE EFFICACY OF CLAIM LETTERS<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.\u00a0 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]<\/sup><\/a> 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:\u00a0 <\/strong>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.<\/em><\/p>\n

A. Avoiding Adversarial Priming<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u201cthe effect in which recent experience of a stimulus facilitates or inhibits later processing of the same or a similar stimulus.\u201d[3]<\/sup><\/a> Put more simply, a person is \u201cprimed\u201d 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]<\/sup><\/a><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u201cfair\u201d and \u201creasonable\u201d under the circumstances. Likewise, drafters should reiterate that they want to work \u201ccooperatively\u201d with the owner and that all parties should keep an \u201copen mind\u201d 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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<\/em> occur. As such, language such as \u201cif you do not pay this claim\u201d or \u201cwe will proceed to litigation if you do not pay this claim\u201d should be actively avoided, at least to begin with.[5]<\/sup><\/a> Due to this, drafters should actively incorporate \u201cpositive\u201d priming to facilitate an efficient resolution and carefully scrutinize their letters for any \u201cnegative\u201d priming that may act as a psychological roadblock to a good-faith negotiation process. \u00a0Avoid insults and accusatory language. The goal is to sound firm but cooperative. A letter that sounds like an ultimatum may backfire\u2014particularly if read by an owner\u2019s project manager before it reaches legal counsel. Keep the language neutral and solution-oriented, even when asserting strong claims.\u00a0 We have yet to see a situation where insults encourage the other party to open their wallets.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:\u00a0 <\/strong>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\u2014and avoid wording that sounds aggressive, legalistic, or confrontational, which can shut down discussions before they start.<\/em><\/p>\n

B. Utilizing Narrative Framing to Control the Story<\/strong>\u00a0<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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]<\/sup><\/a> 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]<\/sup><\/a> Due to this, drafters of claim letters should be sure to tell the factual \u201cstory\u201d of their claim in a way that is both human and coherent.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u2019s name rather than making general statements about the owner\u2019s 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u2019s duties to coordinate such access. Then, after detailing the owner\u2019s 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\u2019s 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:\u00a0 <\/strong>To be persuasive and effective, claim letters should tell a clear, detailed, and human story\u2014one 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.<\/em><\/p>\n

C. Strategic Use of \u201cAnchoring\u201d<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Another strategy drafters can use to turn out more effective claim letters is to incorporate \u201canchoring\u201d 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]<\/sup><\/a> 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]<\/sup><\/a> 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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. \u00a0One 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. \u00a0To do so may \u201canchor\u201d owner concerns about the reliability of all that is to follow.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:\u00a0 <\/strong>By strategically using anchoring, drafters can influence the trajectory of settlement discussions\u2014setting a credible, well-supported monetary figure in the claim letter that frames the owner\u2019s expectations and increases the likelihood of a more favorable recovery\u2014so long as the initial demand remains reasonable and defensible.<\/em><\/p>\n

III. PRACTICAL DRAFTING GUIDELINES FOR CONSTRUCTION CLAIM LETTERS<\/strong><\/p>\n

A. Documentation and Evidence Inclusion<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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: \u201cAs shown in the April 12 daily report (attached), our crews were unable to mobilize due to the delayed delivery of structural steel.\u201d\u00a0 Always cite the relevant contract clauses. This not only reinforces the contractor\u2019s legal entitlement but also shows that the claim is grounded in the terms both parties agreed to.<\/p>\n

Takeaway:<\/strong> Enhance credibility by providing specific, detailed backup. <\/em><\/p>\n

B. Demonstrate Strength by Applying Facts to Eventual Litigation Theories<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.\u00a0 Any inconsistency will be used by opposing counsel to cast doubts on the credibility of the claim.\u00a0 In other words, \u201cyou told us then that this was a design issue, but now you\u2019re saying it was a coordination issue \u2013 which is it?\u201d.\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Takeaway:<\/strong>\u00a0 Ensure that the facts presented are consistent with any potential legal theory of recovery.\u00a0 If necessary, consult qualified construction counsel to evaluate potential theories and present facts supporting those theories. <\/em><\/p>\n

IV. CONCLUSION: REFRAMING CLAIM LETTERS AS STRATEGIC LITIGATION AND NEGOTIATION TOOLS<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u2014all while preserving key facts and legal positions.\u00a0 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.<\/p>\n

Announcements<\/u><\/strong><\/p>\n

Dean Thomson<\/a>\u00a0<\/strong>was one of eight attorneys in Minnesota selected to be on the Forbe\u2019s <\/strong>inaugural list of\u00a0America\u2019s Best-In-State Lawyers<\/a>. <\/strong>This list recognizes top attorneys across all 50 states and U.S. jurisdictions. For more information click here. <\/a><\/strong><\/p>\n

Fabyanske, Westra, Hart and Thomson, PA <\/strong>has once again been recognized as one of \u201cThe Top 50 Construction Law Firms\u201d\u2122 <\/strong>by\u00a0Construction Executive,<\/a>\u00a0<\/strong>a leading construction industry magazine for construction firms, being the only firm in Minnesota in the Top 50. For more information click here. <\/a><\/strong><\/p>\n

Fabyanske, Westra, Hart & Thomson, P.A. <\/strong>has been ranked as a Band 1 Construction Law Firm in Minnesota <\/strong>by the well-recognized Chambers <\/strong>professional rating service.<\/p>\n

Dean Thomson<\/a> <\/strong>(Band 1 Construction Law)<\/p>\n

Kyle Hart<\/a> (<\/strong>Band 1 Construction Law)<\/p>\n

Mark Becker<\/a> <\/strong>(Band 1 Construction Law)<\/p>\n

Julia Douglass<\/a> <\/strong>(Band 3 Construction Law)<\/p>\n

Jesse Orman<\/a> <\/strong>(Band 3 Construction Law)<\/p>\n

Rory Duggan<\/a> <\/strong>(Band 2 Real Estate Law)<\/p>\n

Here\u2019s what Chambers has to say about FWHT<\/strong> \u201cFabyanske, Westra, Hart & Thomson PA is esteemed for its dedicated construction group, which brings deep industry insight to disputes, contract negotiations, planning issues and arbitration matters. The group represents diverse participants from the public and private sectors, including design professionals, insurers and subcontractors. The firm frequently acts on large-scale regional and national projects. It has attorneys who are well known in the sector, having been appointed to leadership roles at a variety of industry bodies.\u201d For more information click here<\/a>.<\/strong><\/p>\n

\n

[1]<\/a> The term \u201cclaim\u201d 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 \u201cclaim,\u201d 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.<\/p>\n

[2]<\/a> See<\/em>, Carrie Sperling, Priming Legal Negotiations Through Written Demands<\/em>, 60 Cath. U. L. Rev. 107 (2011).<\/p>\n

[3]<\/a> https:\/\/dictionary.apa.org\/priming<\/p>\n

[4]<\/a> C. Neil Macrae et al., On Activating Exemplars<\/em>, 34 J. OF EXPERIMENTAL SOC. PSYCHOL. 330, 345-46 (1998).<\/p>\n

[5]<\/a> If repeatedly ignored, it may be necessary to explicitly threaten litigation.<\/p>\n

[6]<\/a> Susan Bandes, Empathy<\/em>, Narrative, and Victim Impact Statements<\/em>, 63 U. CHI. L. REV. 361, 383 (1996).<\/p>\n

[7]<\/a> Gary Paquin & Linda Harvey, Therapeutic Jurisprudence, Transformative Mediation and Narrative Mediation: A Natural Connection, <\/em>3 FLA. COASTAL. L.J. 167, 170 (2002).<\/p>\n

[8]<\/a> Thomas D. Gilovich & Dale W. Griffin, Judgment and Decision Making<\/em>, in HANDBOOK OF SOCIAL PSYCHOLOGY 552-54 (Susan T. Fiske et al. eds., 5th ed. 2010).<\/p>\n

[9]<\/a> Strack, Fritz; Mussweiler, Thomas, Explaining the enigmatic anchoring effect: Mechanisms of selective accessibility<\/em>, 73 (3) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 437\u2013446 (1997).<\/p>\n

This discussion is generalized in nature and should not be considered a substitute for professional advice. \u00a9 2025 FWH&T.<\/em><\/h6>\n","protected":false},"excerpt":{"rendered":"

By Hugh D. Brown & Zachary E. Coppola Hugh Brown and Zachary Coppola are members of the firm\u2019s Construction Law Department. Hugh can be reached at 612.359.7663 or Hbrown@fwhtlaw.com. Zach can be reached\u2026<\/p>\n","protected":false},"author":8,"featured_media":5373,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[7,19,60],"tags":[],"class_list":["post-5394","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-briefing-papers","category-hugh-d-brown","category-zachary-e-coppola"],"acf":[],"yoast_head":"\nDon\u2019t Just Check the Box: Drafting Construction Claims that Prove and Persuade - Fabyanske, Westra, Hart & Thomson<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.fwhtlaw.com\/blog\/2025\/07\/25\/dont-just-check-the-box-drafting-construction-claims-that-prove-and-persuade\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Don\u2019t Just Check the Box: Drafting Construction Claims that Prove and Persuade - Fabyanske, Westra, Hart & Thomson\" \/>\n<meta property=\"og:description\" content=\"By Hugh D. Brown & Zachary E. Coppola Hugh Brown and Zachary Coppola are members of the firm\u2019s Construction Law Department. Hugh can be reached at 612.359.7663 or Hbrown@fwhtlaw.com. 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