Construction Law Today

What does it mean to meet the “standard of care” in the construction industry—and what happens when that standard is called into question? In this episode, we’re joined by Chris Caddell of Spire Consulting and Tim Ross of Andrews Myers to explore how the standard of care applies to contractors, design professionals, and peer reviewers. Drawing on years of real-world experience, Chris and Tim share practical strategies for addressing standard of care issues in contracts, avoiding common pitfalls, and proactively managing risk from the earliest stages of a project.

In this episode we discuss a book recently published by the ABA Forum on Construction Law—"Design-Build and EPC Contracting: A Practical Legal Guide” (2024)—one of the ABA Forum on Construction Law's newest books.  Construction lawyer and book editor Ken Rubinstein discusses his role as editor (on behalf of other editors Nicole Lentini, Logan Hollobaugh, Wendy Venoit, and Paul Varela), the content and process for developing the book, current issues that face project Owners and emerging industry trends, and practical tips for how to navigate the unique challenges in this space as construction lawyers.

In this episode we discuss a book recently published by the ABA Forum on Construction Law—"Representing the Project Owner: A Construction Lawyer's Guide” (2025)—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 and book editors Anatoly Darov, Sanjay Kurian and Kristen Sherwin discuss their roles as editors, the content and process for developing the book and current issues that face project Owners.

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.