Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Stites & Harbison Law Firm : Green Building & LEED Litigation

Tweet ... Tweet ... Tweet!  No, I am not cat-calling or whistling at you.  I am tweeting from the ABA Forum on the Construction Industry's annual meeting in Austin, Texas.  The program chairs have set up a Twitter account for the conference.  You can follow @forumaustin or search the hashtag #forumaustin.  If you want to follow my Tweets, you can do so at @matthewdevries.  Also, make sure to send me an email or message if you want to meet up.  And now, to the program schedule:

The Age of Turbulence: Managing Money Issues in Construction

1. From Project Concept to Funding: Where Do You Get the Money?
2. Shaking hte Money Tree: Funding Our Way Out of the Infrastructure Crisis
3. The Inside and Out of Public Private Partnerships
4. Foreign Exchange: The 10 Commandments for Successful Execution of International EPC Projects
5. Accounting for Construction Lawyers
6. Realizing "Value" from Value Engineering: Costs, Benefits and Legal Issues
7. Damages Beyond the Contract: Tort and Statutory Liabilty for Architects, Engineers and Contractors
8. The AACE Recommended Practice for Forensic Schedule Analysis
9. Pursuing Payment: Damned if You; Damned if You Don't
10. Walking the High Wire While Juggling: Strategies to Manage Litigation Costs and Meet Client Expectations
11. Law and Life Series: Making the Business Case for Diversity in the Practice of Constructoin Law
12. Consequential Damages in the Current Economic Climate: A Guide to Recovery and Avoidance
13. Pre- and Post-Judgment Collection Remedies: Show Me the Money!
14. When to Terminate the Client: It's An Ethical Question

That's a packed schedule for three days.  Let me know if there is a specific session you want me to attend.  I will be your proxy and do a special post on Friday.

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A fellow Twitter friend, @danielschwartz, promoted a technology symposium on his Connecticut Employment Law Blog yesterday.  In order to spread the word about the symposium, he challenged his readers and fellow Twitter followers to tweet about their favorite Supreme Court case in less than 140 characters.  

As I thought about the construction industry, there was only one decision that kept coming to mind.  It involved a contractor who agreed to build a dry-dock in the Brooklyn Navy Yard.  In order to build the dry-dock in the site selected for it, the contractor was required to relocate a portion of a sewer that ran through the specified site. The owner (the United States) provided the plans and specifications for the sewer that was to be relocated.  The contractor completed the work according to the plans and specifications.  The owner approved and accepted the work.  But wait ... about a year after the relocation of the sewer, a dam in a connecting sewer caused flooding in the area excavated for the dry-dock. This dam was not shown on the owner's plans and specifications.  That's the background and here is my tweet: 

US v. Spearin: Owner designs. Contractor builds. Owner accepts. Work sucks. Owner sues. Contractor absolved. Owner loses.

If you live in the government contracting world, don't start sending me emails about how wrong I have described the Spearin Doctrine above.  Let me expand my statement beyond 140 characters and give you some more information about the 1918 decision in United States v. Spearin:

• The Rule. The Spearin Doctrine is legal principle that holds that when a contractor follows the plans and specifications furnished by the owner, and those plans and specifications turn out to be defective or insufficient, the contractor is not liable to the owner for any loss or damage resulting from the defective plans and specifications.
• Exceptions to the Rule.  In 2007, the Ohio Supreme Court rocked the construction law world by significantly limiting the application of the Spearin Doctrine.  In Dugan & Meyers Construction Co. v. Ohio Dept. of Administrative Services, the trial court applied the Spearin rule in favor of the contractor based upon alleged damages from the impact of an excessive amount of design changes.  On appeal, the Ohio Supreme Court reversed, holding that the Spearin Doctrine did not apply to cases involving delays due to design changes. Rather, the court focused its decision on the “no damages for delay” and “written requests for time extension” clauses in the contract.  Specifically, the court concluded: “We observed that the Spearin Doctrine does not invalidate an express contractual provision.” 
• Applicability to Green Construction.  Last year, fellow blogger Chris Cheatham suggested that there could be a green Spearin Doctrine.  I am confident that the Spearin Doctrine would be applied equally to non-green construction projects and LEED certified projects, As noted by Chris, a guarantee by the contractor could invalidate any Spearin Doctrine defense by the contractor.  Sounds like the Ohio Supreme Court, right?  The Spearin Doctrine cannot invalidate an express contractual provision.

Any Spearin tid-bits that you would like to share? 

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I have my Google reader set to search various blogs, news sites, and Twitter feeds to help me keep current with the latest trends in the construction industry.  There remains one major problem: the words we use have different meanings for everyone.  

Take, for example, my search of Twitter feeds (above) for Building Information Modeling (BIM).  If you were to do the same search during a weekday morning, the majority of results would return various individuals involved in some aspect of the construction industry either praising or criticizing BIM. Now, if you were to do the same search on any given Friday or Saturday night, you might be surprised to get a varied assortment of results (and photographs) of individuals out for a night of partying.  You see, BIM is also slang for "bimbo" or ... how do I say this ... a "lady with questionable morals"? 

What's the lesson here?  Did you click on this article because you thought it related to LEED or Green Buildings?  It kinda does.  It kinda doesn't.  The lesson is that we live and work in a world where information spreads quickly.  In addition, we have become informal in our communications through the use of email, texting and Twitter.  (And in our personal lives, there may not be anything wrong with informality in our communications.)

However, the construction project is built on expectations and performance.  Where those expectations are accurately and correctly reduced to a writing, the parties have a written contract.  Where the parties use words that have different meanings (and both interpretations are reasonable), we now have an ambiguity.  A judge or arbitrator will then be asked to interpret that ambiguity based upon any number of legal tools (i.e., parties' words and conduct, other writings outside the four cornings of the contract, industry norms, etc.).  As the construction industry begins to employ new technologies, such as BIM, or new performance based goals, such as energy performance from a LEED certified building, then it becomes even more important that we use words that do not lead to miscommunication.

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My roomie from law school, Rick Klau, sent me a note this past weekend.  Actually, he tweeted it!  (You, too, can follow me at www.twitter.com/matthewdevries).  I was excited to hear where Rick was visiting.

"Best Practices..." you ask, "Why are you posting about your old law school roommate? This is a construction-related blog!"

The best answer I can give you is that this former roomie of mine was asked to be the commencement speaker for the graduating class of 2009 of the University of Richmond School of Law and he had some great stories to share. After all, he went from law student, to founder of the first exclusively online law journal (JOLT), to author, to political volunteer, to owner of a start-up technology company that was purchased by Google ($$$), to technology guru at Blogger. 

Also, after reading the text of his speech, I am more convinced that his words hit the mark of Best Practices for any industry ... whether you are involved in the law, technology, finance or construction:

Google didn't get to where we are by following those before us. Nor will change come to the legal profession incrementally. To be an agent of change, a steward for the profession, you must think big. The forces at work are too large, too numerous, and evolving too quickly. You must have the audacity to, to borrow a tagline from another Silicon Valley company, think different.

To be a steward for the construction profession, you really have to think big ... you have to think different.  If we were to take a look at the Top 10 contractors, design-builders, architects, or engineers in the industry, no doubt you would find these attributes that set a company apart from the rest ... that is, the desire to think big ... to think differently ... to excel in their services.  Does your firm have a mission statement like Bob Moore Construction, Inc. in Arlington, Texas?  If not, it should. 

Rick, thanks for the great words of wisdom.  Whenever you are ready to write a guest post for BPCLaw, let us know.

Photo: tarotastic

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