I just returned from speaking at the AGC National Convention last week and I am trying to get through the pile of work on my desk.  I was able to stay connected all the way from Hawaii to my office and family in Nashville with the help of my iPad.

I know it is late notice, but if you get a chance tomorrow, Wednesday, March 21, 2012, at 12:00 noon (CST), please join me for a free webinar sponsored by the ABA Forum on the Construction Industry on "The Best Legal Apps for Construction Lawyers."

Tom Mighell, Chair of the ABA’s Law Practice Management Section, attorney and blogger at iPad 4 Lawyers, and I will be reviewing some of the best legal apps for construction lawyers (as well as non-construction lawyers) (as well as non-lawyer constructors)!  Topics include: 

  • Documents and Notes
  • Pretrial and Depositions
  • File Management and Productivity
  • Jury Selection/Tracking
  • Evidence Presentation
  • Legal Research
  • Meetings
  • Construction Apps

For more details on how to register or connect to this Free Webinar, follow the link here.

As a construction lawyer, I do a good deal of public speaking.  Next week, I will be speaking at the AGC National Conference in Honolulu, Hawaii on the following topic: From BIM and PDFs to Tweets and eDiscovery: Planning and Managing a Technology-Driven Construction Project. 

After attending at least 100 conferences and trade shows over the last 20 years, I have made a few observations about the people, booths and information presented by the companies in attendance, which I share today on Christopher Hill’s blog, Construction Law Musings.  To continue reading, click here…

In this day of iPhones, DROIDS, and Blackberries, the construction industry has to deal with new forms of communication.  Since we live in world of mobile devices and technology, you have to assume that everyone else is on the same mobile playing field and are working on-the-go.  What does that mean?


It means that as a construction executive, management member or project level player, you are being pulled in all directions.  On some days, you may be in the office, while other days you may be onsite, and even other days you are traveling across the country.  Given your on-the-go status, it helps when people know how to reach you and how to communicate effectively.

One area where you can improve your communication skills is to make sure you actually explain what is attached to the email because it may be read on a mobile device.  In other words, when sending an attachment, you should do the following:

  • Do not use "FYI" … This assumes that the recipient knows what the email string involves and what has transpired prior to this particular email.  You don’t have to write a novel about the attachment, but include more than an "FYI."
  • Explain what the attachment is … "Attached is a copy of the draft change order language  from ABC Development Co. on the USA Zoo project."  Since many construction contracts are lengthy and legal pleadings are voluminous, it is often impossible to download the full attachment and actually read it on a mobile device. 
  • State whether the matter is urgent or whether you need a response … The owner will be out of town for a week so we do not need to respond immediately.  Again, if the attachment is a letter from the opposing party that requires an immediate response, then you should say so in the email. Don’t assume that your recipient can or has read the attachment.

You may think these tips are no-brainers, but they have changed the way I communicate with my clients over the last year.  For example, I previously sent the "Please see attached" emails to my clients without even thinking that the email was sent to a Blackberry or iPhone (…even though I carry my phone everywhere and expect the same communication from my assistant …)  Thanks to some lessons learned, I am taking the extra minute to explain my attachments and include a response line.

Question: Do you have any tips for communicating in the digital age?

I had an admiralty professor at law school who would often refer to the Justices of the Supreme Court of the United States as … get this … the Supremes!  In honor of Professor Jones, today’s post is about the Supremes’ decision in PPL Montana, LLC v. Montana (pdf),  where the court declined to expand the definition of "navigable" under federal law.

What is "navigability"? In the case, the Montana Supreme Court held that the state of Montana owns and may charge for use of riverbeds where privately owned hydro-electric dams were located.  It was undisputed that the state owned all riverbeds that were navigable at the time of statehood, but that title remained with the federal government for those beds of river that were not navigable. Thus, the ultimate question turned on whether the waterway at issue was "navigable" and which test applied. In a 26-page unanimous decision, the Supremes held that navigability must be determined segment by segment, and that river segments which are sufficiently obstructed that travelers must portage are not navigable.

Why is the decision important to the construction industry?  The decision is hailed as a victory by the American Road & Transportation Builders Association, which was the only transportation construction association involved in the case and who filed a brief with eight other industry associations.  According to a press release by ARTBA, the ruling removed a "road block" that unnecessarily had the potential of delaying transportation projects:

For purposes of transportation development, once something is considered “navigable” it is under federal control, and subject to the permitting authority of the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). An expanded definition of “navigability” could have resulted in a scenario where the EPA and Corps would have the option of exerting jurisdiction over roadside ditches, potentially adding years to already expansive review and approval process for transportation infrastructure projects that are needed for increased mobility and improved safety.

If the state decision had been upheld, any water body … including water features that are common on highway and other transportation projects … could have been deemed to be navigable simply because someone could use it for a “recreational purpose."

Image: Orin Zebest

You can search a legal database and find thousands of construction disputes. If you are lucky, you find the one case that has similar facts to your dispute and the court reaches the same legal conclusion that you seek. And it’s a good story.

 

If you end up in court, either pursuing a construction claim or defending a breach of contract claim, your attorney should be a good story-teller. Ultimately, you will have to convince either a judge, jury or arbitrator that your side of the story is correct. One of my favorite stories in a construction dispute comes from the court in Blake Construction Co. v. C.J. Coakley Co. Inc., 431 A.2d 569 (D.C. 1981), where the court described the painful construction dispute as follows:

Except in the middle of a battlefield, nowhere must men coordinate the movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction project such as the building of this 100 million dollar hospital. Even the most painstaking planning frequently turns out to be mere conjecture and accommodation to changes must necessarily be of the rough, quick and ad hoc sort, analogous to ever-changing commands on the battlefield. Further, it is a difficult task for a court to be able to examine testimony and evidence in the quiet of a courtroom several years later concerning such confusion and then extract from them a determination of precisely when the disorder and constant readjustment, which is to be expected by any subcontractor on a jobsite, become so extreme, so debilitating and so unreasonable as to constitute a breach of contract between a contractor and a subcontractor.

Honorable mention goes to Mobil Chemical Co. v. Blount Brothers Corp., 809 F.2d 1175 (5th Cir. 1987), where the court introduced the theme of the case with the follow words: "The parties to this action somehow built a chemical plant. They have been trying to figure out who should pay for it ever since."

If you have a construction dispute, you will have to be prepared to tell you side of the story in a credible way, supported by written documentation, and you must have reasonable expectations. Too many times clients get bogged down in the "fine print" details without focusing on the big picture. To me, the details are important … but they cannot replace the overall story that must be told.

Question: What are some of your favorite construction stories?

When it rains and the kids cannot got out to play, our house can get a little chaotic.  A few weeks ago, I lost my cool demeanor.  Jackson (below) was screaming at the top of his lungs and was chasing three other kids with a light-saber.  I yelled: "Time out! Everyone!"  They all stopped dead in their tracks.   

This kind of "time out" is occurring more and more frequently in the construction industry.  It is called the automatic stay and it can affect the entire construction project when one of the parties files for bankruptcy protection.  Sometime, parties attempt to get around the automatic stay of bankruptcy by including a waiver provision in their contracts, which can read something like this:

Subcontractor hereby waives the protection of the automatic stay provisions under federal bankruptcy laws, 11 U.S.C. section 362, or any other similar stay provisions under any present or future state or federal law relating to bankruptcy or insolvency.

 

That cannot be enforceable, can it? What’s the point of a time out … the automatic stay of litigation that is guaranteed by filing for bankruptcy protection … if you can waive it? Certainly, the bankruptcy courts do not appreciate their jurisdiction and powers being waived? Wrong. The issue is not so simple.

Courts have treated pre-petition waivers differently and inconsistently throughout the country.

  The courts generally fall into the following categories:

  • Those jurisdictions where pre-petition waivers are enforceable, whether on public policy grounds or freedom of contract grounds.
  • Those jurisdictions where pre-petition waivers are unenforceable, as against a statutory policy or to protect other creditors.
  • Those jurisdiction where pre-petition waivers are viewed on a case-by-case basis.

If you understand the purpose of the automatic stay, then you understand why there might be divergent views from the courts.  The waiver of automatic stay provision should not be confused with a blanket prohibition against filing for bankruptcy, which would not be enforceable.  In other words, the automatic stay is not to provide an absolution of liability, but rather to "stay" the litigation of claims that exist outside the bankruptcy court.  The stay … or "time out" … gives the debtor, the creditors, the trustee and the court a resting area to begin, assess, and analyze the restructuring process.  For an good review of the law, see Michael L. Bernstein’s article for the American Bankruptcy Institute entitled, "Enforceability of Prepetition Waivers of the Automatic Stay."

What are the lessons learned when dealing with the automatic stay?  There are a few: (1) read your contracts before you sign them; (2) understand what the laws are in your jurisdiction and whether a pre-petition waiver is valid; and (3) don’t violate automatic stay once the "time out" is in place.  Penalties can include voiding the action, damages, and even contempt of court.

Last night at an AGC of Middle Tennessee dinner, a contractor asked me, "Are pre-employment physical exams legal?"  I gave him my favorite legal response: "It depends!"

More and more, employers in the construction industry want to implement pre-hire health exam programs to determine whether prospective employees are physically capable of performing the particular construction job.  The concern for contractors is that a new hire with a physical limitation gets re-injured and costs the company to defend workers’ compensation claims.  So the legal question is whether the employer can conduct a pre-hire examination without violating either state or federal law.

What are the legal limitations?  The American with Disabilities Act (ADA), which applies to employers of 15+ full-time employees, comes into to play in this situation. In addition, your particular state’s human rights laws probably adopt the same or substantially similar limitations as those required by the ADA.  The fear is that, as an employer, you do not want to face a claim of discrimination for refusing to hire someone with a physical disability that is protected under the ADA or its state law companion.

In order to comply with both state and federal law, the following general requirements should be met:

  1. An offer of employment should be made conditioned on the results of a subsequent physical health examination.
  2. The health examination focus only on the job-related abilities that are essential to the position.
  3. The health examination should be required of all people that are conditionally offered employment for the particular position.

What happens when the health examination demonstrates a limitation?  If the person does not pass the physical examination and the employer decides to withdraw the conditional offer of employment, then it must notify the person within 10 days of the decision to withdraw.  The employer must provide the medical basis for withdrawing the offer. 

What are some best practices for implementing a program?  Of course, each state is different.  However, some general tips to follow include:

  • You should have a written file on the physical requirements of each job description, which can be used by the examining physician
  • Any information learned from the health exam should be kept confidential, so as not to violate any privacy rights of the prospective employees
  • Leave the medical assessment to the health examining physician and do not ask medical questions during applicant interviews

The law can be confusing when talking about pre-hire health exams and you are well advised to seek legal counsel if you want to develop such a program.  

Image: Lower Columbia College

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.

Question: What are some examples of contract ambiguity you have experienced or seen? 

CBS San Francisco reported last week that a construction crew unearthed human remains while installing new plumbing lines in San Carlos, California.  Construction was halted while sheriff’s detectives and investigators from the San Mateo County coroner’s office arrived and began an investigation.  Has this ever happened at one of your sites?

If you find bones or other archeological artifacts during excavation and construction, here are a few tips on what you should do:

  • Stop work.  Many contract documents, including the AIA 201 (2007), require the contractor to "immediately suspend" the operations upon the discovery of human remains or other archeological findings.  Even if your contract does not address this situation, you should stop work to properly analyze the situation.
  • Call others.  This includes the owner, the architect/engineer of record, and local police.  Check your state’s law to see whether you have an obligation to notify any other public authority, such as Tennessee Code section 11-6-107, which requires you to notify the coroner or medical examiner upon the discovery of human remains during construction. 
  • Assess options.  Depending on your jurisdiction, you may be required to rebury the remains pursuant to a local statute.  For example, if you have excavated a cemetery or other historical burial site, you will be required to rebury the remains by using either a funeral home or an archeological group. 
  • Preserve claims.  As always, the parties’ contract should address risks such as "bones" found on the construction site.  Generally, the owner of the site is required to take action to continue the work and resolve the problem.  The contractor may be entitled to additional time and money for the impact of the discovery and remediation efforts.
In the situation above, the police and coroner’s officials will continue to investigate to determine whether any crime was committed.  At the conclusion of the investigation, the property owner and contractors can continue their work.

Image: Hyoung Chang

You have a captive audience for 45 minutes.  You’ve worked hard on your presentation: slides, transition, talking point, and animation.  You are introduced.  You click on the first slide.  Nothing.  Your computer locks and you feel the sweat trickle on your brow as you hit, CTRL-ALT-DEL.

This exact scenario occurred once when I was giving a presentation to a group of architects, engineers and contractors.  The worst part was that my talk, Lessons from the Movies: Negotiating and Drafting Construction Contracts, absolutely required the use of a computer.  So, there I stood, with two locked computers, a presentation that focused exclusively on movie clips, and a captive audience.

What should you do?  Here are some tips when your presentation goes bad:

  • Prepare for the "bad" before the presentation.  Since I had problems with a similar presentation, I thought I was prepared by bringing two computers.  Little did I know (or expect) that the second computer would not work either.  Luckily, I printed out my presentation earlier in the day and had some written notes on the slides.  I was able to adjust the presentation based upon my written notes.
  • Embrace "humility" in your presentation.  When the first laptop went down, I chuckled.  When the second laptop went down, I smiled.  (I admit, I was not too happy on the inside!)  Although I had some written notes, this mishap gave me an opportunity to show the real me.  Rather than movie scenes, I talked about my marriage and children, which provided some good examples of negotiating and drafting contracts.  I talked about my move from Washington to Nashville, which provided some good talking points about reputation and integrity.  In other words, you can turn a bad situation into good by opening your own "book of life" and sharing some experiences.  Be humble.  They will understand. 
  • Remember the "point" of your presentation.  Of course, a presentation that has embedded video clips may be "more polished" than the previous speakers at this event.  However, you are presumably speaking because you have something to say … some words of wisdom … some advice.  Understand that "you" are the presentation, which may help prepare you for those occasions when the laptop fails.

Question:  What tips do you have for when the presentation goes bad?

Image: Filippo Minelli