Don’t Overlook Federal Rule of Evidence 404(b) in Civil Construction Cases

Federal Rule of Evidence 404(b) is significantly underutilized in civil construction cases. Ordinarily thought of as a criminal evidentiary statute, Rule 404(b) excludes evidence of a person’s character or actions as proof that the person acted in conformity with that character attribute. However, there are exceptions to the rule, such as prior knowledge, motive or lack of mistake. Though seldom used in construction cases, these and other exceptions allow savvy counsel to include evidence that might not ordinarily be admitted in a civil construction case. 

First, while the statute lists useful exceptions to the 404(b) exclusion, other exceptions, such as the doctrine of chances, may be used to admit this type of “other acts” evidence. Second, even if counsel attempts to gather Rule 404(b) evidence and the evidence is found inadmissible, there is an advantage to going through discovery on these issues—namely more relevant information, which leads to more leverage at settlement and at trial.  

The Doctrine of Chances
The doctrine of chances is a theory that allows the jury to decide whether a number of ostensibly unconnected coincidences are in fact part of a larger pattern, and thus not an accident. This is not a character theory because the person’s character is not being used as a predictor of conduct; instead, the jurors are being asked to use their common sense to determine whether a theory is credible. Because it is not a character theory, this evidence is not excluded by Rule 404.

Similarity between the current act and the prior act is required. This is reasonable, as it’s the parallel between the deeds that leads the jury, through common sense, to the conclusion that it was not an accident that both acts occurred. As courts have said, “The man who wins the lottery once is envied; the one who wins it twice is investigated.” Because this doctrine merely uses common sense to determine whether a lack of accident exists, it is a recognized exception to the Rule 404(b) ban on character evidence.

However, civil construction attorneys rarely use this exception. For example, in one case, the plaintiff contended that the contractor systematically underbid its projects and then consistently charged delay claims and extra work claims to the owner. The doctrine of chances could have been used to show that the contractor underbid in the past. Certainly, one or two examples would not have been enough to convince the jury, but if underbidding was evident on enough jobs, the jury could have decided it was an intentional scam carried out repeatedly. 

More Information Equals More Leverage
Even in cases where this evidence is excluded, other advantages can accrue. In the previously mentioned case, the plaintiff alleged systematic underbidding by the contractor. Had the doctrine of chances been a defense, the defendant would have requested information on every bid the contractor ever made that resulted in the bid being too low. Giving the opposing party information regarding every bid in which the contractor participated could result in a large amount of potentially damaging material. It’s not appropriate to engage in a “fishing expedition” for information that would not be relevant to the issue at hand, but in this case the information was not only relevant, it was arguably dispositive. 

Had that information been requested, the contractor would have had to question whether it wanted those details made public at trial. If underbidding had been discovered, every other owner or general contractor for whom that contractor had worked may have had a lawful fraud claim against the company. 

With the uncertainty that a jury can bring to a case, a contractor in that situation may opt to settle rather than risk the possibility of every owner that was underbid (intentionally or not) suing for fraud.  

This type of evidence is not often used in civil construction cases. One reason is the valid concern that the admission of this type of evidence will result in a trial within a trial, and that the jury will be confused or, worse, bored. However, evidence such as that used by the doctrine of chances (e.g., prior acts, historical context and details that flesh out a story) can make a trial much more interesting and, if done correctly, actually energize a jury. 

Gregg M. Jacobson is an attorney in the construction and commercial litigation practices at Chamberlain Hrdlicka, Atlanta. For more information, call (404) 658-5448 or email gregg.jacobson@chamberlainlaw.com