Construction Law Today

In the latest episode of the Construction Law Today podcast series, Judge Nancy Holtz (Ret.), a seasoned JAMS mediator based in Boston, shares her insights on the critical role timing plays in achieving successful outcomes in construction mediations. Drawing from her extensive experience as a judge and mediator, Judge Holz discusses the delicate balance of timing in terms of exchanging information, sharing key information about mediation participants ahead of time and being willing to make bold moves as lawyers and party representatives in order to optimize settlement opportunities. Her practical advice and expertise offer valuable guidance for navigating the mediation process.

Our guest for this episode is Arlan Lewis, an accomplished construction lawyer and partner at Blueprint Construction Counsel in Birmingham, Alabama. Arlan recently served as chair of the ABA Forum on Construction Law and was elected this year as a Fellow of the American College of Construction Lawyers. Recorded live at the 2024 Forum Fall meeting in Pittsburgh, our conversation delves into Arlan's journey in the Forum and the central role the organization has played in his career. Join us for an insightful discussion with one of the Forum's leaders.

Our guest for this episode is Adrian Bastianelli, an attorney at Peckar & Abramson in Washington, D.C., and one of the nation's most distinguished construction lawyers and arbitrators. Adrian's career includes serving as Chair of the ABA Forum on Construction Law, editor of The Construction Lawyer, and the inaugural editor of the Journal of the American College of Construction Lawyers (ACCL). During the 2024 Fall Meeting of the Forum in Pittsburgh, Pennsylvania, I had the pleasure of speaking with Adrian about his remarkable journey in the Forum and how it has shaped his career.

In this episode we delve into the history of force majeure provisions and the impossibility doctrine. Our now repeat guest Benton Wheatley addresses this topic from the perspective of the common law history of force majeure and impossibility, leading up to a discussion about practical tips and frequently encountered problems in the area of COVID-19 and other developing claims.

In this episode we discuss the False Claims Act and its impact on the construction industry. Our guest is Chelsea Cullum, Executive VP, Forensics with Vertex in Washington, DC. She is a forensic accounting and quantum expert with a particular focus on government contracts, including analyzing and testifying with respect to false claims. Together we discuss the potential hazards and emerging trends with claims based on government contracts, including the most common types of claims that impact public construction projects.

In this episode we discuss autonomous vehicles and their impact on the construction industry. Our guest Tony Lathrop of Moore & Van Allen in Charlotte, NC addresses this topic using his many years of experience in his firm's Transportation, Infrastructure & Logistics and Litigation groups and in leadership on the North Carolina Board of Transportation since 2017. Together we discuss the current capabilities and future of autonomous vehicle technology, its potential to transform many aspects of the construction industry and some interesting legal questions that arise as a result.

In this episode we discuss a topic that is familiar to many of our listeners—construction case and claims investigation—but with a focus on some innovative ways to consider and pursue information. Our guest Mark Becker at Fabyanske, Westra, Hart & Thomson, P.A., addresses this topic using his years of experience in the construction litigation field and on related topics of discovery, “document review,” effective use of experts, studies, subpoenas, FOIA requests, software review and depositions to gather the best information toward winning your case.

In this episode we explore the issues raised and opportunities presented by the infusion of Private Equity money in the construction industry and resulting issues in the field of construction law. Our guest Benton Wheatley addresses this topic using his years of experience in the area and on related topics of construction project financing, contracting, management and claims. Benton also provides an overview of practical tips and frequently encountered problems including ethical issues for lawyers practicing construction law in this era of increased private equity participation. 

In this episode we discuss double blind mediation techniques—and best practices for lawyers who participate in construction claims mediations. Accomplished construction lawyer and mediator Mark Heley addresses this topic. Together we explore the mediation of larger multi-party cases, how double blind mediation processes can help to solve disputes and the upsides and downsides of this approach.

In this episode we discuss DRBs—Dispute Resolution Boards—and best practices for experts and lawyers who participate in them. Engineer and expert Joe Siebold from Arcadis addresses this topic. Together we explore the range of processes undertaken by DRBs, their best uses including quarterly reviews and ways to stop disputes before they start. Joe describes the work that experts can perform, potential pitfalls for parties presenting to DRBs, and issues to look out for as lawyers, including whether DRB rulings and recommendations are binding or admissible in subsequent litigation.

In this episode we discuss BIM-Building Information Modeling systems, legal issues implicated by BIM and best practices for lawyers in contracting and in working with professionals who use BIM every day. Construction lawyers Kristine Kubes, owner of the Kubes Law Office in Minneapolis, and Jimmy Germano, Senior Manager and Counsel-Contract Documents at AIA discuss this topic, including potential contractual and negligence issues associated with BIM, how AIA has dealt with BIM in its form contract documents, other legal issues involving ownership of the BIM model and whether BIM is a contract document, and practical tips for construction lawyers on dealing with BIM on construction projects.

In this episode we discuss the second edition of the "Construction Checklists" book (2022)—one of the ABA Forum on Construction Law's newest books and an excellent addition to the organization's catalog of useful resources. Construction lawyers Terry Brookie and Misty Gutierrez discuss their role as editors (along with co-editors Eric Berg and Carrie Okizaki), the content and process for developing the book, and some practical ways in which construction lawyers and other industry participants will benefit by using the book.  

This podcast is about Cyber Insurance. In a business environment in which construction industry participants face the daily threat of cyber-attacks by way of ransomware and malware, and the potential for data breaches as well, insurance products have stepped in to provide protection. Our guest Kent Collier, Senior Vice President at Greyling Insurance Brokerage & Risk Consulting, tells us about the range of options for responsive insurance products that may cover liability for cyber threats. We address specific instances of how insurance responds to attacks, how the industry is changing due to recent threats, best practices for reacting to cyber incidents and for construction lawyers advising their clients on these matters, and thoughts on the future of cyber threats and related claims and litigation.

This podcast is on Early Dispute Resolution (EDR)—a form of alternative dispute resolution that is becoming more widely used to resolve construction industry disputes. EDR seeks to resolve complex commercial disputes within 30-60 days with an outcome equivalent to those reached after full motion practice or trial. Our guests are Brett Henson and Peter Silverman of the Shumaker law firm. Brett and Peter describe the goals of EDR, its use in practice and some aspirational commentary about EDR becoming the standard resolution practice for a wider range of construction disputes.

Here is Part 2 of our podcast on the AIA Contract Documents hosted by David Suchar. Part 1 of this series is found at Episode 19. Our guest in both episodes is James “Jimmy” Germano, Manager and Counsel for the AIA Contract Documents. Jimmy tells us in this episode about the AIA's contract drafting philosophy and the impact of current construction trends on the Contract Documents. Topics include the influence of COVID-19, proliferation of Design Build and Delegated Design, increasing complexity of insurance arrangements, Prefabricated Construction, advancements in Building Information Modeling practice, and discussion of how the Contract Documents are being updated as a result.

In Episode 23 of the podcast, we took our first look at one of the issues arising from the Champlain Towers collapse in Southern Florida. The subject of that podcast was building code enforcement.  As further investigation into the disaster continues, more information is coming out about the condition of the building and the Homeowners Association's efforts to deal with the building's maintenance issues and to pay for the extensive needed repairs.  This likely very common situation gives rise to the multifaceted issue of condominium governance, especially as these buildings age.  Today we speak with Evan McKenzie, a professor at the University of Illinois, Chicago, a prominent authority on how these private governmental bodies attempt to meet the needs of the buildings that they operate and the residents they serve. This is a fascinating and complex subject that will undoubtedly attract the attention of construction lawyers now and in the future. 

Many of our clients will bid on federal projects, and may have claims relating to these projects. This is especially true given the recent passage of the Biden administration's infrastructure package. In this podcast we speak with two skilled and experienced federal contracting lawyers from the Oles Morrison law firm in Seattle Washington. Join me, Doug Oles and Howard Roth for an interesting and enlightening broad-based look at the Federal contracting and claims processes. 

On Thursday, June 24, 2021, Champlain Towers South, a 12 story residential condominium in the Miami suburb of Surfside, Florida collapsed killing 98 people. The incident is one of the greatest losses of life caused by a construction failure in the history of the United States.  There are numerous questions about what happened and why. Understandably, the matter is now the subject of extensive litigation. One fact that is known is that the structure met all applicable building codes in effect when the construction was completed. Join us for an instructive and interesting interview with Linda Pieczynski, noted author, instructor and former prosecutor of building code violations in a discussion of how and when building codes are enforced and the impacts and limitations of these codes in assuring safe construction.

The ABA Forum on Construction Law is a prolific producer and publisher of books on construction law.  In this episode we meet with the editors of a brand new edition entitled: “Design Professionals Guide to Construction Law.” Construction lawyers Matt Ninneman,  Buck Beltzer and Mark Mercante discuss the background and content of the book as well as some of the key current legal issues that can impact design professionals. Join us for an interview that is sure to be of interest to architects and other designers, and the lawyers who represent them. 

Many construction contracts contain binding arbitration provisions and as a result, the arbitration process continues to be an important topic for all construction lawyers. This episode is a conversation with two preeminent arbitrators, John Hinchey and Laura Abrahamson, both with the JAMS Organization.  Each has remarkable experience in the field and share their respective thinking on current trends, developing processes, and what works, and why. They add some keen insight on what domestic arbitration procedures might take from international practices.  My discussion with John and Laura should be interesting and informative to those involved in all aspects of the construction arbitration practice. 

In March, 2021 three experienced black  construction lawyers were interviewed in a program at the Annual Meeting of the American College of Construction Lawyers.  Barbara Werther, a Fellow of the American College of Construction Lawyers, conducted the interview.  It is an important and thought-provoking discussion.  In this episode I talk with Barbara about her presentation and, immediately following, the entire interview is reproduced in our podcast.  The perspectives of these lawyers provide remarkable insight into several diversity and inclusion issues.  

The American Institute of Architects has been creating and disseminating all kinds of construction contracts for more than 120 years. These documents have become an integral part of the way lawyers, owners and contactors think about construction deals. In this podcast we talk with James “Jimmy” Germano, Manager and Counsel for the AIA Contract Documents. Jimmy tells us about the background of the AIA, the structure of the document system, how the documents are revised and updated, and where the AIA headed.  It is an interesting, fun and informative discussion. 

Modular and prefabricated construction techniques are becoming increasingly popular in a variety of applications. Lee Davis from the law firm of Eversheds Sutherland in Atlanta, Georgia explains some of the key legal issues that arise in this area. This is an evolving field with many complex, and sometimes surprising matters to consider. This is an excellent primer to become acquainted with these new and challenging ideas.

In this episode I talk with Andy Ness of JAMS in Washington D.C. about Neutral Case Evaluation.  Andy, a well know construction mediator and arbitrator, explains how this technique can be used to help resolve complex disputes. It is an interesting and informative discussion on another form of alternative dispute resolution that is growing in use. 

Join us for an enlightening discussion with two sophisticated practitioners of the “Guided Choice” method of mediation. Bill Geisen of Stites & Harbison and Dean Thomson of Fabyanske, Westra, Hart & Thomson, are not only knowledgeable about this specific type of mediation which employs very early intervention of the mediator, but also have a wealth of experience in the world of construction law.  Listen to Bill and Dean provide a number of practical examples of how “Guided Choice” mediation may be particularly useful in resolving complex construction disputes.

Here is Part 2 of our two-part podcast on insurance issues in construction litigation.  Part 1 of this series is found at Episode 5. Our guest in both episodes is David Suchar from the Maslon Law Firm in Minneapolis, Minnesota. David and I pick up on where we left off in Part 1 and discuss builder’s risk insurance, professional liability insurance, and current issues arising in COVID related insurance litigation.

Design Build is an important and sometimes complex project delivery method. In this podcast we speak with Stephen Del Percio of AECOM’s New York metropolitan area office.  Stephen is very familiar with many of the issues involving Design Build and offers interesting insight into these matters. He is an engaging and talented lawyer and engineer who brings a wealth of experience to the table in our thirty-minute discussion.

In this episode we talk with Kristen McDonough, the Program Director of Building for Good, Inc. Building for Good, or B4G as it's referred to, is a national not-for-profit corporation based in Boston, Massachusetts which matches construction lawyers with a variety of types of charities to help provide pro bono legal assistance on all kinds of construction projects.  Kristen explains the history of Building for Good, the projects they are currently working on, and how construction lawyers can get involved with this worthy effort.

Join us for our first podcast episode relating to the COVID-19 ciris.  Washington D.C. attorney Shiva Hamidinia, from the law firm of Nichols Liu LLP, discusses recent decisions relating to the legal impact of pandemics and the rationale used by courts to decide these cases.  The two cases discussed, reaching opposite results, may be instructive as to how courts will be treating these issues in the future.  Shiva's commentary is interesting and insightful.

Many cases require the use of expert witnesses on issues ranging from causation to damages. Attorney Alex Dockery of the law firm of Goulston & Storrs and Chris Sullivan, a well-respected consultant and expert witness with FTI Consulting, discuss the basics, and some of the more complex issues, of retaining and effectively using an expert in the construction case. The discussion highlights why choosing and working well with the right expert can make an important difference in your case.

In this episode, Buzz sits down with renowned construction lawyer Adrian Bastianelli to learn about Adrian’s recent research into how our own bias effects the manner in which we interpret cultural differences in negotiations. Adrian discusses, with some remarkable insight, just how extensively these negotiations can be impacted by our own perceptions about the actions of the parties sitting on the other side of the table.

What is the future of the construction industry? Futurist Simon J. Anderson joins us for an interesting discussion of the trends which are shaping how construction work will be undertaken in the future. If you think the future is coming fast, you are right!

In this episode, our guest Lance Currie, from the law firm of Carrington, Coleman, Sloman & Blumenthal, LLP in Dallas, Texas, discusses the issues related to limited workforce diversity in much of the construction industry including opportunity risks, safety risks, legal risks, and reputational risks for companies not having a diverse and inclusive culture.

Welcome to our first international podcast.  This is an interesting and informative discussion with Roberto Hernandez of COMAD, S.C. in Mexico City.  This episode discusses what an American construction company, and its counsel, might need to know about undertaking a project in Latin America.

ConsensusDocs are one of the commonly used set of construction documentation forms.  Brian Perlberg, the executive director of ConsensusDocs, joins us for an episode to discuss the history of form documents in the construction contracting world, in general, and more specifically, some of the philosophies that support some of the thinking behind the language and format of ConsensusDocs. 

This is part one of a two-part podcast on the important issue of insurance in construction litigation. Our guest David Suchar, from the Maslon Law Firm in Minneapolis, Minnesota, reviews with us some of the basics of insurance law as it applies to construction, and then moves into some of the more complex issues that are typically seen in a construction dispute.  This is a very interesting subject and a great guest.

Please join us in an interesting discussion with Stephen Hess of Sherman & Howard from Colorado Springs, Colorado about the “care and feeding” of shop drawings.  Stephen raises a number of interesting points with regard to these documents which are commonly found in a number of construction contracting transactions.  Is a shop drawing a contract itself?  Which parties assume obligations and responsibilities under shop drawings?  Tune in to find out.

Our podcast, in this episode, focuses on the Spearin Doctrine announced by the United States Supreme Court in 1919.  This is the 100th Anniversary of the Doctrine and it is still relevant in current issues in construction law.  Our guest is Robbie MacPherson from the Gibbons law firm in Newark, New Jersey.  Robbie offers significant insight into the applicability of the Spearin Doctrine and the limitations on the doctrine that have arisen over the years.

Our guest for this episode is Dan Brennan, an experienced construction lawyer from the law firm of Laurie & Brennan, LLP in Chicago, Illinois.  Dan speaks about project delivery methods.  We talk about how to select the right project delivery method and the pros and cons of various ways to contract for a project.

In our inaugural episode, host Buzz Tarlow interviews George Meyer of the law firm of Carlton Fields in Tampa, Florida.  George is an expert in large scale construction projects including stadiums, arenas, ballparks, convention centers, airports, hospitals, and hotels.  In the podcast, George speaks about the key issues presented to owners in connection with these large projects.  Many of these issues that owners worry about on large projects, also are concerns on smaller projects as well.