ABA Under Construction New 2008-08

Ethical Considerations in Construction

Ethical Considerations inConstruction ...............1

The Forum Announces the2008-2009 Chair-Elect,new Governing CommitteeMembers and the DivisionChairs .......................1

Message fromthe Chair-Elect.............2

A Conversation with theForum’s SeniorMembership................3

Editor’s Message...........5

Downstream Allocationof Concurrent DelayDamages, Part 3...........6

By Thomas L. RosenbergRoetzel & Andress LPA

As lawyers, we are bound to ethicalstandards and rules. The Model Code ofProfessional Responsibility or similar codesadopted in our respective States set astandard of ethics for lawyers to follow.Also in place is a system for reportingviolations, investigating violations anddisciplining lawyers who may act contrary toethical standards and obligations.

What about the construction business? Arethere ethical standards to which participantsin the industry are subject? Does anarchitect submit to certain standards ofethical conduct that might also apply to acontractor, subcontractor or supplier? Theseissues were recently raised and considered inColumbus, Ohio.

The Builders Exchange of Central Ohio is thelargest trade association of constructionindustry members in Ohio. While themajority of its members are contractors, theBuilders Exchange also has architects,engineers and attorneys as members. TheBuilders Exchange created the “RisingLeaders” program to identify future leadersin the industry and foster leadership andcamaraderie in the profession. During its2007 meetings, the program discussed issuesof organizational management, leadership,finance, human resources, businesscommunication, law and ethical challenges.Participants were young leaders from allphases of the construction industry whowent through an intensive nomination andendorsement program. To broaden thegroup’s perspective, the young leaders wererequired to bring the owner or a seniormanager from their companies to participatein the ethics discussion.

UNDER CONSTRUCTIONT h e n e w s l e t t e r o f t h e A B A F o r u m o n t h e C o n s t r u c t I o n I n d u s t r y

August 2008

The Forum Announces the2008-2009 Chair-Electand New Leadership

At the Annual Meeting in La Quinta, CA, theForum elected:

Adrian L. Bastianelli, III

as its Chair-Elect, and

Terrence L. Brookie,Gregory L. Cashion,

Carol J. Patterson, andJoseph D. West,

as new Governing Committee Members.

The Forum’s Division Chairs for 2008-2009are: Catherine E. Shanks (Div. 1); David A.Scotti (Div. 2); Joseph Jones (Div. 3);Kerry L. Kester (Div. 4); John Clappison(Div. 5); Michael Murphy (Div. 6); W. CaryWright (Div. 7); John S. Vento (Div.8);Aaron P. Silberman (Div. 9); ChristopherD. Montez (Div. 10); Edward Benes (Div.11); and Daniel S. Brennan (Div. 12).

In preparation for the ethics program,surveys were sent to the young leaders andthe senior management participants.Responses were received from 21 youngleaders and 20 senior managementpersonnel. For each scenario, allparticipants were asked: (1) Is this ethical?;(2) Does this happen in the industry?; and (3)Does this happen in your company? A reviewof the survey scenarios follows.

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everyone included the three “Ps” –Programs, Publications and People.This made development of much of theStrategic Plan relatively simple.However, the unique and sometimescontroversial responses provided aspringboard for expanding discussionand developing new goals. The processand product of this strategic planningwill provide an excellent foundationfor the continued growth of the Forum.

So where are we headed? Thecornerstone of the Forum will continueto be quality. While we will grow inmany ways, the Forum will notsacrifice quality for quantity or speed.We will continue to vet our programsrigorously and make demands onspeakers that go well beyond thenorm. We will continue to demandthat The Construction Lawyer, UnderConstruction, and our books be ofexceptional quality.

Programs. The Forum will continuewith three national programs per year:(1) The Consensus DOCS, September11-12, 2008 in Chicago, IL, (2)Insurance and Risk Management,January 15-16, 2009 in Bonita Springs,FL, and (3) Energy, Sustainability, andGreen Building, April 16-17, 2009, inNew Orleans, LA. The Forum plans toincrease its outreach to members whodo not attend the national meetings,particularly young lawyers, by offeringprograms through different formatsand delivery systems. In this vein, wewill have regional programs in Orlando,Philadelphia, Indianapolis, Las Vegas,and San Francisco, on constructioncontracts on November 6, 2008. Wehave produced our first video from apast conference, which can bepurchased from the ABA Web Store.We will continue to expand ourteleconferences and are considering orexperimenting with webinars, podcasts, streaming live video to remotesites, blogs, and other media. Finally,we are considering a concentrated

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Vol. 10, No. 3 – August 2008

Newsletter EditorJeffrey R. Cruz

Bear, Stearns & Co. Inc.320 Madison AvenueNew York, NY 10022

[email protected]

Associate EditorMorgan L. Holcomb

University of Minnesota Law School229 Nineteenth Avenue South

Minneapolis, MN 55455612-625-3533

[email protected]

2008-2009OFFICERS AND GOVERNING COMMITTEE

CHAIRRobert J. MacPherson

[email protected]

CHAIR-ELECTAdrian L. Bastianelli

[email protected]

IMMEDIATE PAST CHAIRMichael D. Tarullo

[email protected]

GOVERNING COMMITTEE MEMBERSTerrence L. Brookie

[email protected]

Gregory L. Cashion615-742-8555

[email protected]

L. Franklin Elmore864-255-9500

[email protected]

L. Tyrone Holt303-225-8500

[email protected]

Anthony L. Meagher410-580-4214

[email protected]

Andrew D. Ness202-508-4368

[email protected]

Jennifer A. Nielsen630-575-0020

[email protected]

Patrick J. O’Connor612-766-7413

[email protected] J. Patterson

[email protected]

A. Elizabeth Patrick404-437-6731

[email protected]

James S. Schenck IV919-789-9242

[email protected]

Joseph D. West202-955-8658

[email protected]

Under Construction is published by the American Bar Association Forum onthe Construction Industry, 321 N. Clark Street, Chicago, IL 60654. Requestsfor permission to reprint and manuscripts submitted for consideration shouldbe sent to the attention of the Editor, Jeffrey R. Cruz. Address correctionsshould be sent to the ABA Service Center at the address above.

The opinions expressed in the articles presented in Under Construction arethose of the authors and shall not be construed to represent the policies ofthe American Bar Association or the Forum on the Construction Industry.Copyright © 2008 American Bar Association.

Where AreWe Going?

Adrian L. Bastianelli, IIIChair-Elect

2

By Adrian L. Bastianelli, IIIPeckar & Abramson, PC

I have had the opportunity toparticipate in Forum GoverningCommittee (“GC”) meetings now goingon twelve years. Each new group ofleaders has brought a different style,approach, philosophy, and emphasiswith them. However, they have allhad in common the ability to makeexcellent decisions for the good of theForum – and in that time the Forumhas prospered. The Forum has notrested on its laurels and each year hasseen tremendous growth andimprovement. From the achievementof financial stability, to the increasedparticipation of the membership, tothe quality of programs andpublications, that growth has beencontinuous and positive. The Forumjust keeps getting better.

In mid-May, Mike Tarullo and RobbieMacPherson brought together a diversegroup of Forum members in Chicago todevelop a new Strategic Plan for theForum. The group included younglawyers, new leaders, presentleadership, and some old-timers. Itdeveloped a far-reaching StrategicPlan to present to the GC. By thetime this article is published, the GCwill have enacted a version of thisPlan, available on our website.

In preparation for the meeting,questionnaires were answered by allattendees. It was amazing to me howclosely the answers to many of thequestions tracked each other, evenbefore there was any discussion. Forexample, when addressing the goals orpurpose of the Forum, almost

CHAIRELECT

MESSAGE FROM THE

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This view, held by many in theconstruction industry, is frequentlywrong and results from a lack ofknowledge and understanding. Oneof the Forum’s new goals is toadvance relationships with industryorganizations in order to improvemutual understanding and respectbetween the legal and constructioncommunities.

Finally, the Divisions are thebackbone of the Forum. The Forumwill seek to increase Divisionmembership and participation, andimprove communication among theDivisions, Forum leadership and thegeneral membership.

In my view, the Forum is headed inthe right direction and will continueto improve and grow in the future asit has in the past. As with mostorganizations, those who activelyparticipate get the most out of theorganization. So get on board andbecome active. If you want to knowhow to get involved or there issomething you would like to do,please contact me [email protected] or (202)293-8815.

construction defects, constructioninsurance, and updated editions ofprevious publications.

The Forum continues to lead the ABAin its use of technology. For example,we will make a database of pastprogram materials and otherpublications available to members onour website and expand the eLibrarycontained on the program DVDs.

People. This may be the mostimportant prong for the Forum. Therelationships I have developed throughthe Forum are invaluable and wouldnot have been possible without theForum. This camaraderie is whatbrings many people to the programsand drives them to invest so muchtime in the organization. The Forum isdeveloping new outreach strategies toimprove the Forum experience of allmembers, particularly minorities,women, new members, young lawyers,government lawyers, in-house counsel,and long-term members.

Often a lawyer is stereotyped as adisruptive, argumentative person whodestroys relationships and does notadd value to the business process.

3 Under Construction

Where Are We Going?Continued from Page 2

“NITA” style course on constructionarbitration or litigation.

Publications. The ConstructionLawyer continues to receive more highquality articles than it can publish andhas been expanded in length toaccommodate this phenomenon.Under Construction has fared similarlyand may go to an electronic format toallow it to increase the quantity ofmaterial published in it.

The Forum will continue to produce atleast two books per year. This yearwill include a construction checklistbook, an international constructionlaw book, and a second edition of thecontracts book. We are particularlyproud of the upcoming publication of aconstruction law text book for use inlaw schools. An electronic directoryconsultants is also in the works. Otherbooks are in various phases ofproduction: a construction lawglossary, construction law for non-lawyers, a “sticks and bricks” guide toheavy and horizontal construction,accounting for construction lawyers,

A Conversation Withthe Forum’s SeniorMembershipIn June 2008, Allen Overcash a memberof the bar for nearly 50 years, wasinterviewed by Kory D. George, anassociate at their firm, Woods & AitkenLLP in Lincoln, Nebraska.

Q: When you first started practicing lawin 1959, why did you get involved in thearea of construction?

A: Just because it happened to beavailable. I worked construction butdidn’t have an emphasis in school orlaw school. I was going to be a taxlawyer.

Q: In the fifty years or so that you havebeen practicing construction law, howhas the practice changed from whenyou first started?

A: It is a larger legal industry now. Thenumber of lawyers practicingconstruction law has increased ten-fold; there is a lot more construction, alot more cases.

Q: Why do you think there are morelawyers today that specialize inconstruction law?

A: Growth of the industry as well asother facets of the economy. It alsoreflects more complex projects, largerand more difficult projects andcontract arrangements with a numberof parties, and the number ofdevelopments in the industry. Thingslike design, which is now no longer theexclusive province of the architect,have become much more complex. Agreater risk of disputes is an importantfactor.

Q: How has the practice ofconstruction law changed for the

better in your fifty years?

A: Generally, educationalbackground. The Forum is a goodexample—more programs, updatedprograms, written material, as wellas electronic material available toconstruction lawyers. It is a moreintelligent and sophisticated bunch.

Q: What are the biggest obstacles orchanges construction lawyers facetoday?

A: Well, I think understanding theindustry and understanding theproblems. I don’t think the law hasdealt very well with constructionover the years. Generally, the formcontracts that are published byindustry groups very frankly are paidlittle attention to by the people whoare actually doing the work. Lawyersare only involved in contracts thatare for much larger and more

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Construction EthicsContinued from Page 1

Scenario 1 – After an owner accepts ageneral contractor’s bid, the GCdemands that the subcontractorreduce its price in order to receivethe work.

This business practice is ethical.Total Group: Yes (15%); No (85%).Young Leaders: Yes (20%); No (80%).Senior Mgmt.: Yes (10.5%); No (89.5%).

This business practice occurs in theindustry.Total Group: Yes (92%); No (8%).Young Leaders: Yes (85%); No (15%).Senior Mgmt.: Yes (100%); No (0%).

This business practice occurs in mycompany.Total Group: Yes (38.5%); No (61.5%).Young Leaders: Yes (40%); No (60%).Senior Mgmt.: Yes (37%); No (63%).

Scenario 2 – A GC “frontloads” orincreases the alleged amount of workperformed during the initial stagesof the project in order to obtainmore money up front.

This business practice is ethical.Total Group: Yes (54%); No (46%)Young Leaders: Yes (55%); No (45%)Senior Mgmt.: Yes (53%); No (47%)

… occurs in the industry.Total Group: Yes (85%); No (15%).Young Leaders: Yes (80%); No (20%).Senior Mgmt.: Yes (89.5%); No (10.5%).

… occurs in my company.Total Group: Yes (54%); No (46%).Young Leaders: Yes (50%); No (50%).Senior Mgmt.: Yes (58%); No (42%).

Scenario 3 – An owner requires ageneral contractor to review thedetails of the design and assumeresponsibility to provide work notspecifically included in the design,but claimed to be needed for a“complete” system.



This business practice occurs in theindustry.Total Group: Yes (90%); No (10%).Young Leaders: Yes (85%); No (15%).Senior Mgmt.: Yes (95%); No (5%).

This business practice occurs in mycompany.Total Group: Yes (59%); No (41%).Young Leaders: Yes (50%); No (50%).Senior Mgmt.: Yes (68%); No (32%).

Scenario 4 – Prior to submitting a bid,a contractor becomes aware ofdefects in plans, and submits a bidwithout telling the owner or architectabout the defects, because it knowsthis can form the basis for a claim foradditional compensation during theproject.


… occurs in the industry.Total Group: Yes (89%); No (11%).Young Leaders: Yes (85%); No (15%).Senior Mgmt.: Yes (94%); No (6%).


Scenario 5 – An owner is bidding alarge construction project thatincludes underground work crossing ariver or stream. The owner tells thebidders the soil reports are for theirinformation only in preparing bids andcannot be relied upon to guaranteesoil conditions. The owner also tellsthe bidders that they may performany and all soil analyses possible inconnection with preparing their bid.The owner knows, however, that it isimpossible for bidders to obtainapproval to take soil analysis orstudies in the river or stream.




Scenario 6 – What about lienwaivers? The participants wereasked to consider a situation wherea general contractor requires lienwaivers from subcontractors thatwaive lien rights in advance formoney not yet received from thegeneral contractor or that will bepaid out of the next paymentreceived from the owner.

This business practice is ethical.Total Group: Yes (38%); No (62%)Young Leaders: Yes (40%); No (60%)Senior Mgmt: Yes (35%); No (65%)

… occurs in the industry.Total Group: Yes (84%); No (16%).Young Leaders: Yes (80%); No (20%).Senior mgmt.: Yes (88%); No (12%).


Scenario 7 – A general contractorasks a subcontractor for a price onchange order work and the subintentionally inflates its pricebecause it knows the GC is not in aposition to hire another sub to dothe work.



… occurs in my company.Total Group: Yes (28%); No (72%).Young Leaders: Yes (20%); No (80%).Senior Mgmt.: Yes (37.5%); No(62.5%).

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Construction EthicsContinued from Page 4

As you can imagine, these questionsgenerated a lot of discussion. It wasinteresting to see where the youngleaders and senior managementdisagreed about whether somethingwas ethical or whether somethingoccurs in the industry.

I was surprised to see that nearly 30%of the group believed it was ethical fora bidder not to tell an owner orarchitect about defects in the biddocuments, with the intent to use thatinformation as the basis for a potentialclaim. Many contract bid documentswould require the contractor to makesuch disclosure to the architect orowner.

The exercise was intended to gaugereaction to and generate discussion ofa number of provocative scenarios, notto compile scientifically accuratestatistics about the ethical beliefs ofcertain classes of subjects. Theparticipants did not receive detailedexplanations of the terms “occurs inthe industry” or “occurs in mycompany.” In particular, we wantedto identify areas where there was agap between a young leader’sperception of ethical issues, and theperceptions held by seniormanagement personnel. Also, wewanted to identify and discusssituations generally held to be anunethical practice but also viewed tobe prevalent in the industry. This wasan exciting and animated event. Thediscussion went on for hours and I amsure continued after the sessionended.

The participants, guided by theirinternal sense of right and wrong andnot by a written code of ethics,expressed very strong opinions aboutwhat is and is not ethical in theconstruction business. Rule bookscannot cover all ethical situations,especially on a construction project.There was a consensus, however, thatethical standards of conduct start fromthe top down. Leaders are theprimary shapers of an organization and

an industry’s climate and culture.They define what is important to theorganization and the industry from anethical standpoint. They identify thevalues and create a mechanism toencourage proper behavior.

Lawyers have a role in defining andserving the business practices thatthe construction industry values asethical. Drafting contractdocuments, partnering sessions andeven recommending a projectdelivery system can be opportunitiesto address ethical issues inconstruction. Many of the problemsencountered by the scenarios abovecan be eliminated or managed by theterms of a contract, by consideringthese issues in a partnering meetingor by counseling an owner when it isdeciding how to structure its project.As the push continues toward morecollaboration from the outset of aproject among owner, designprofessionals, construction managersand contractors, lawyers can be atthe forefront of addressing the issues.If lawyers miss that opportunity, theresult for the construction industrywill be conflicts, claims and strainedrelationships.

Forum ConversationContinued from Page 2

sophisticated projects, and primarilyare involved in disputes that happenat the end of the line. So, to someextent, the industry doesn’t rely onlawyers and legal work as much as itshould. I would like to see thatchange; I would like to seeconstruction law taught in all the lawschools in the country; I would like tosee lawyers more attuned with theconstruction process; I would like tosee reform in the contract systemand also the dispute handling systemso lawyers are more involved in it.

Q: What would you say to a younglawyer who is considering thepractice of construction law?

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Editor’s MessageLike many in the Forum, I did notbecome fully engaged in our“Publications, Programs and People”until someone else in the Forumencouraged me to jump in. Ourcurrent Chair urged me to join theForum and seek out the Young LawyersCommittee. A short time after that,our current Chair-Elect suggested Iapply for the Hard Hat Case Noteseditor’s position. The fellowship andmentoring that I have been fortunateto experience in the Forum is apowerful force, and one that flowsnaturally from the remarkable peoplewho commit themselves to the Forum’ssuccess. To keep that great energyflowing, I have asked Ben Patrick, thecurrent chair of the YLC to arrange aseries of interviews of senior membersof the Forum, to be conducted by YLCmembers. Allen L. Overcash, a partnerat Woods & Aitken LLP in Lincoln,Nebraska, has been practicing lawsince 1959, served on the ForumGoverning Committee, and receivedthe Cornerstone Award in 2002. Forthis issue, Allen has agreed to beinterviewed by Kory D. George, anassociate at his firm.

That first YLC meeting I attended wasjust a handful of people nibblingcheese and sipping wine, meetingspouses and trading business cards.Since that time, after much more timespent together and wine and cheeseconsumed, the YLC has grown andprospered in much the same wayAdrian Bastianelli describes theForum’s arc of progress in his firstcolumn as Chair-Elect. That originalgroup has since “graduated” from theYLC, but every one I met in those earlydays of the YLC has gone on in theForum to write and edit articles andbooks, chair Divisions and Programs,speak at regional and nationalMeetings, and even serve on the GC.It’s only a matter of time before thefirst YLC alum is elected Chair. Whenthat happens, I hope that fortunateconstruction lawyer will agree to beinterviewed by a member of the YLCfor Under Construction.

http://www.wthf.com/attorneysdetail.php?name_first=Ben&name_last=Patrick

faith in making the claim).Contractually, the parties may agreethat float belongs to the Project butthat to establish entitlement to acompensable delay or time extension,the contractor must establish not onlythe events of delay but also that theyare delays to the critical path. It canbe further narrowed to require delaysto the overall project, in excess of anyfloat on a critical activity. In otherwords, before an excusable andcompensable delay may occur, thecontractor must exhaust the totalfloat on the project. In at least onecase, such a clause provided that“extensions of time for performance…will be granted only to the extentthat equitable time adjustments forthe activity or activities affectedexceed the total float or slack alongthe channels involved.” Titan PacificConstr. Corp., ASBCA Nos. 24148 etal, ¶ 19,626 at 99,320 (1987). Thistype of provision can be onerous tothe contractor because it limitsseverely the entitlement to excusableand compensable delay, therebyrestricting events of concurrent delay,leaving only the owner claim forcontractor caused delay.

Third, as noted above, to be entitledto any time or price adjustment forowner caused delays (or contractorcaused delays to a subcontractor), thecontractual notice provisions must bemet. An owner or contractor (inaddressing its lower tier contractualobligations) may draft tighter noticerequirements than exist underindustry forms such as the AIA A201General Conditions, whether in termsof the timeliness by which the delaynotice must be provided or in terms ofthe substantive requirements of whatsuch a notice must provide. Theconsequence of failing to comply withthese contractual requirements maybe claim preclusion altogether.

Fourth, the contract terms mayexpressly prohibit monetary recoveryfor concurrent delays by thecontractor, or by the subcontractor,


Downstream Allocation of Concurrent Delay Damages, Part 3By Michael F. Drewry and Daniel M.DrewryDrewry Simmons Vornehm, LLP

In the last two issues of UnderConstruction, we explored the problemof concurrent delay and potentialdefenses to apportionment. In this finalinstallment, we address ways to manageoutcomes through contract documents.

Controlling the Outcome through theContract Documents

The ability to apportion the costs ordamages for concurrent delays can besignificantly enhanced or curtailedthrough effective negotiation anddrafting. Whether it is done in theOwner-Contractor Agreement or ProjectGeneral Conditions, or in theContractor’s subcontract terms, thereare provisions that can impact andpotentially determine the ability tosuccessfully assert or defend againstdownstream concurrent delay damages.

First, the allocation of, or liability for,concurrent delay can be managedthrough the definition of “excusabledelay” under the contractual excusabledelay clause, whether it is in Article 8of the AIA A201 General Conditions ofthe Contract for Construction (1997 and2007 ed.) or Supplementary Conditionsaddressing that Article or in the expressterms of the Contractor’s Subcontract.The tighter or more precise the groundsstated that must be met in order toestablish entitlement to an excusabledelay, the more difficult it becomes toestablish a compensable delay. This hasthe effect, in essence, of limitingconcurrent delays by limiting thecreation of contractor or subcontractorclaimed compensable delays.

Second, ownership of the float can beaddressed through express language.Most parties provide for contractclauses which state that float is not forthe use of any one party on a project,but rather float belongs to the projectand therefore is available to either theowner or contractor, whoever claims oruses it first (provided they act in good

while preserving the right of theowner to assert liquidated damagesor even actual damages for its delays(if it can establish them apart fromthe contractor’s delay). It is a riskallocation that if made should beenforceable under normal rules ofcontractual interpretation. Inessence, it is like an extension of the“no damages for delay” contractualbar to recovery.

Fifth, the contract may provide theowner with the right to order thecontractor to re-sequence oraccelerate its work and to undertakeefforts to recover the schedule suchas increasing manpower, workingovertime, going to an extendedschedule or additional shifts, whenfaced with delays to the criticalpath. While the ability to so directthe contractor (or subcontractors) totake steps to bring the work back onschedule may result in a claim forimpact costs due to the delay, if it isdemonstrated that the delay is notcontractor caused (and thereforeexcusable), in the case of concurrentdelays, the inability of thecontractor to meet this very burdenof proving that it was not the causeof the delay may result in arecovered schedule and a denial ofthe additional costs of doing so.Likewise, from an ownerperspective, even if such costs arecompensable in whole or in part, thesavings to the project by schedulerecovery may justify the effort andcost of doing so.

Sixth, the contractor dealing withlower tier contractual apportionmentof concurrent delays among itssubcontractors may provide in itssubcontracts that it, and it alone,shall have the right to apportionconcurrent delays and theirattendant costs or damages amongthe respective subcontractors thatthe contractor deems responsible,and that such determination by thecontractor shall be binding upon andwithout

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Downstream Allocationof Concurrent DelayDamages, Part 3Continued from Page 6

recourse by the subcontractors. Thisprovision may be accompanied by anexpress obligation or duty imposedupon subcontractors not to delay orhinder the work of othersubcontractors and trades so that thecontractual predicate for suchunilateral concurrency apportionmentby the contractor is clearlyestablished.

Seventh, it is critical that thesubcontract contain a well-draftedflow-down provision to ensure that theabove types of contractual provisionsbecome part of the subcontractor’sobligations to pass downstream anyresultant liability for concurrent delaysthat are lower tier generated. Suchlimiting provisions should be expresslyidentified in the flow down clause tocomply with recent case law suggestingthat generic incorporation of rights andremedies from the Contract Documentsmay not otherwise become part of thesubcontract. See, e.g., MPACT Constr.Group, LLC v. Superior ConcreteConstructors, Inc., 802 N.E.2d 901(Ind. 2004).

Conclusion

Concurrent delays can be allocated bya general contractor to or among itssubcontractors, subject to the samerules and limitations impactingconcurrent delay events as betweenthe owner and contractor. As such, theanalysis of concurrent delays, anddownstream allocation of damagesstemming there from, is highly fact-intensive and can be extremelycomplex. The existing body of lawgoverning delay claims, however,generally permits such an allocation tothe responsible parties. The right toapportion exists. The difficulty is theability to do so successfully. Theabove framework does not provide allof the answers, but we hope it willafford the construction lawyer aroadmap for navigating this issue.

Forum ConversationContinued from Page 5

A: I would say he or she needs someconstruction experience. I would saythe best thing they could do is getinvolved with some actual people,owners, designers, contractors who doconstruction work and understandtheir problems, understand how theygo about it so they have somepractical experience that sets themapart from formal legal training whichgenerally involves cases and academicissues.

Q: Is there a good way to mentoryoung construction lawyers?

A: Again, I think the problem withyoung construction lawyers is theyneed to understand the process; theyneed to understand what goes on inthe field and the mentoring shouldinclude that.

Q: What is the worst mistake youngconstruction lawyers make?

A: I think they treat the field tooacademically. They treat it as legalcases, where the facts aren’t asimportant as the interpretation of thedecisions that courts and other bodiesissue when, in reality, the facts andthe relationship of the parties is sohugely important in this area.

Q: Tell me how you first got involvedwith the Forum.

A: I got involved because of DickSmith, who was really my mentor inconstruction. Dick was active in theForum and so with hisencouragement, I started attendingmeetings and participating in Forumactivities.

Q: How has your involvement with theForum helped you as a constructionlawyer?

A: I think it is important as aninstitution that keeps you advised ofcurrent developments in the industry.And it is a forum in which industry andlegal issues are discussed and youlearn information which is invaluable

to your sensitivity to issues that arisein your practice.

Q: What are some of the potentialbenefits for younger constructionlawyers who become active in theForum?

A: Well, the learning is certainly onething, the substance that they wouldreceive in the Forum papers or in themeetings, of course, are important andmay be a central reason to join. Butalso, the relationships with otherconstruction attorneys of their own agethat will be practicing throughout theUnited States and the world. It isinvaluable to be on a constructionproject in some other state or countryand be able to call someone whom youknow and trust for advice on theproblem.

Q: You were on the GC and have heldvarious leadership roles within theForum. Would you encourage youngerpeople to take a more active role inthe leadership of the Forum?

A: I think they should be on thecommittees that interest them, and bevery active in those committees. Andgenerally, I think that is the source ofmembers of the Governing Committee;hopefully, people who have worked inthe Forum and understand the issues. Ithink they should be encouraged asmuch as possible to participate in theForum’s work, particularly thecommittees and move up to theGoverning Committee.

Q: What is the best way for youngermembers of the Forum to gather someof the wisdom of the older members ofthe Forum?

A: They should go to the meetings,they should sign up for thecommittees, they should go to thecommittee meetings, and they shouldobviously listen and participate in theprograms. I think also to the extentthey could get access to older lawyersat the meetings and outside of them, Ithink that is very helpful. I think mostolder lawyers would be happy to dothat.

http://www.in.gov/judiciary/opinions/archive/02040401.fsj.html




Join Us in Chicago for the Forum’s 2008 Fall MeetingWHAT: The Forum's 2008 Fall Meeting takes us to the Windy City, where Chicago's spectacular

skyline will be the backdrop to a program that will be as timely as it is important. ThisFall's program focuses on the new ConsensusDOCS family of construction contractdocuments that were rolled out last Fall. You may have already noticed that theConsensusDOCS have been receiving national attention in such places as in EngineeringNews Record and have been endorsed by more than 20 industry groups. Do thesedocuments represent the winds of change? Well, maybe coming to the Windy City in theclosing days of summer may be just what you need to find out and, more importantly, tostay ahead of the curve on this new family of construction documents that some of ourclients are talking about.

WHEN: September 11 and 12, 2008

WHERE: The conference will be held at the Fairmont Chicago, 200 N. Columbus Drive, Chicago, IL60601. Reservations can be made by calling the hotel directly at 312-565-8000. A roomblock has been reserved for our attendees at a rate of $319 single/double room per night.After August 18, 2008 at 5:00 pm CDT or when the room block is sold out, guest rooms atthe special ABA rate are not guaranteed and may not be available.

TELL ME MORE: Join us Friday Afternoon for a Chicago Architectural River Cruise, presented by TheChicago Architectural Foundation. Expert docents will interpret the world-classarchitecture along the Chicago River. This tour will spotlight more than 50 architecturallysignificant sites along the river where you will discover a new perspective on the city.

Please register by August 18, 2008 to receive the discounted conference rate. For moreinformation about the program, `registration, hotel and transportation arrangements andCLE credit, the conference brochure is available at:

www.abanet.org/forums/construction/featured_program/chicago08.pdf.

August 2008

First ClassU.S. Postage

PAIDAmerican Bar

AssociationServing The Construction IndustryThrough Education, Leadership and Fellowship of ConstructionLawyers

American Bar AssociationForum on the Construction Industry321 N Clark StreetChicago, IL 60654


UNDERCONSTRUCTION

The newsletter of theABA Forum on the

Construction Industry


http://www.fairmont.com/chicago/

www.abanet.org/forums/construction/featured_program/chicago08.pdf

ABA Under Construction New 2008-08

Documents

Transcript of ABA Under Construction New 2008-08