What's Up at Division 1 (No. 7)

 I am very happy to report that . . . 

A LOT is going on with DIVISION 1 in the start of 2021!  

We have used the occasion of the new year to launch and advance a number of initiatives and projects.  Thanks to the D1 Steering Committee members and our many volunteers for all of your hard work and diligence.  

Some of our updates are described in this monthly post. Contact me (rtdunn@Pierce Atwood.com) if you have questions or would like to get involved.  

1. Division 1 Neutrals Directory 

Given that we are the litigation and dispute resolution division of the ABA Forum on Construction Law, we are lucky to have so many mediators, arbitrators, and other experienced project neutrals in our ranks.  

I am happy to announce that we started a directory of our D1 Neutrals.  The directory has 30+ D1 Neutrals on it now.  You can view it on The Dispute Resolver (new page created to host it), D1's ABA Connect page, and through the google sheets.  We will work to update it on a quarterly basis.  

We hope that you find this directory a helpful resource for your practice.  We invited our D1 Neutrals to submit their answers to be featured on our blog.  As those posts are generated, we will link them to the directory.  

If you want to be added to the Division 1 Neutrals Directory, please fill out the form below:

CLICK HERE TO BE ADDED TO D1 NEUTRALS DIRECTORY

2. Launch of D1's Toolbox Talk Series (TTS)

Last year, we missed meeting up with each other in April at the Annual Meeting in Seattle, in June for the planning retreat in Jackson, October for the Fall Meeting in Memphis, and this month (January) for the Midwinter Meeting in San Diego.  

While we miss the CLEs and other organized events, perhaps more so we lost the opportunity for casual conversations during breaks, in the exhibitor hall, and at the hotel bar.  During those conversations, we talk about our cases, our law firms, and other challenges/successes of our professional (and sometimes personal) lives.  We wanted to find a mechanism where we can take that informal conversations and information sharing back home with us in a short, focused program.  

We turned over this concept to Jade Davis and a group of excellent committee members to implement last year.  After a number of planning calls, they developed a name, a logo, and a schedule to put on these programs every month in 2021 and perhaps beyond!  Below is our information flyer about the TTS programs:

On January 28, Division 1 held its first Toolbox Talk Series about Early Dispute Resolution with a focus on In-House Counsel.  We partnered up with Division 11 (In-House Counsel) for the TTS.  Below was the flyer for the event:

Along with our 50+ participants, we had an excellent substantive discussion about early dispute resolution.  Brian Neuffer set the table for us with a case study where EDR was successfully implemented during a project.  Thereafter, Brian and Daya Naef artfully guided the discussion and conversation from attendees.  

What was cool was that there were contemporaneous conversations happening verbally and in writing (through the chat) during the program.  The chat room enabled much more participant engagement than a normal program could provide.  

One key takeaway that I had from the program was that there is a perception that early dispute resolution is much more likely to occur if both sides of a potential dispute have in-house counsel.  Right or wrong, there is a perception that involvement of outside counsel raises the stakes and could lead to more adversity than compromise.  Many parties agreed that further education of owners regarding the value of early dispute resolution could go a long way.  

While the conversation could have gone on much longer, we followed through on our promise and we concluded the program promptly after 30 minutes. 

If you were not able to join us for our January TTS, please consider joining us next month for the next TTS on

Using Experts in Mediation: What Works and What's Different? 

February 25, 2021 at 12:30PM

RSVP HERE

This program will explore how advocates and neutrals can best use experts to assist in resolving or narrowing the issues in construction disputes. Panelists and attendees will offer examples of how experts can bring technical, emotion-free perspectives to the ADR process that the neutral and advocates lack and need to understand and weigh the risks of competing claims.  

Patricia Thompson and David Ponte will lead the discussion for us.  We are starting 30 minutes after our regular time to accommodate other Forum programing during the Forum's first virtual construction law conference.  

3. Forum's First Virtual Construction Law Conference - Feb. 24-26, 2021

Cassidy Rosenthal, our immediate past chair, is Co-Chairing the Forum's First Virtual Construction Law Conference.  The program is designed for all attorneys and law students who have an interest in construction law.  It blends the Forum's fabulous Fundamentals of Construction Law program in the morning sessions followed by topical and engaging CLEs in the afternoon.  View the Brochure for the program.  

In addition to the CLEs, there will be a complimentary welcome reception for networking, numerous social events (comedy, trivia, cooking), exhibitor rooms, and wellness rooms.  Check out the brochure for registration information.  Space is limited for the social events so sign up as soon as possible!

REGISTER HERE

On Thursday, February 25th at 3PM, Division 1 is partnering up with Division 7 and Division 9 for a virtual escape room.  We will be placed into random teams and tasked with progressing through an escape room. Winners will be announced at the conclusion of the program.  

Michael R. Martin

We are very lucky to have Michael Martin from LitCon sponsor this event for us. This will reduce the cost of registration for our members.  

Be on the lookout very soon for registration information for this special joint event by Divisions 1, 7, and 9!  Space is limited for this program.

4. What's Next? 

Division 1 has some fun and interesting projects in the works for 2021.  These include topical distance learning program in March/April, providing author/speaking opportunities for our members, and more social events.  

At the very least, know that if you join Division 1 (Litigation & Dispute Resolution), you will gain A LOT of value out of your membership.  At a minimum, we will have the following two events every month

• Division Planning Call - Second Monday of the Month at 3PM ET
• D1's Toolbox Talk Series - Fourth Thursday of the Monday at 12PM ET (except for this February @12:30PM 

The monthly planning call is a good opportunity to learn what we are working on, what the Forum is up to, and to bring your ideas/suggestions.  

Please join us and get engaged!  Who knows, you may get a D1 branded DeskCrumbee for raising your hand and lending your perspective! 

D1 Steering Committee Member Rob Ruesch with his Crumbee

Thank you and I look forward to working with you all throughout the balance of this year!  

Tom Dunn

Chair, Division 1 (Litigation & Dispute Resolution)

Addressing Confirmation Bias in Mediation

Confirmation bias is the innate human tendency to look for and interpret information consistent with one’s existing beliefs and to ignore inconsistent information, even if that information is demonstrably true. A trial witness’ devastating demonstration of confirmation bias is the climax of the recent, popular HBO mini-series, The Undoing. While exposing the harm caused by a party’s failure to face damaging facts makes excellent court room drama, in real life, advocates have the ethical obligation to do their best to ensure their clients fully appreciate the risks inherent in their legal dispute well in advance of trial.

However, adverse risk analysis also can be challenging for attorneys, due to their natural confidence in their own skills and a proven tendency of trial lawyers to be unrealistically optimistic about their likely success. While such overconfidence may be natural, overconfidence does not guarantee success. A recent article in the Miami-Dade, Florida Daily Business Review offered a stark example of seasoned trial counsel’s failure to accurately predict the outcome of litigation. Pretrial, the defendant’s “gold standard defense” team estimated the worst-case damage estimate at $1.5 million. The jury disagreed, awarding the plaintiff $72.9 million.

Outside counsel’s preparation of a client for mediation should be a perfect opportunity to ensure the client appreciates the risks of proceeding to trial, especially any risks the client might not welcome or want to credit as being inconsistent with its opinion as to the validity of its claims or defenses.  One way for both counsel and a client to more accurately assess litigation risk in the face of inherent biases is to jointly engage in a formal, disciplined identification of those aspects of the case about which the parties and counsel have little control, and to assess the consequences if these risks do not proceed as hoped.

Such considerations will vary, but might include:

 
Jury issues such as:

• Undisclosed juror bias or cultural considerations or the possibility of not seating a jury with the sophistication and objectivity to resolve complex or emotionally charged issues, especially given the limited number of pre-emptory strikes.

• In a lengthy trial, jurors may stop listening to the defense, because they already believe the plaintiff’s case (which is another example of the risk of confirmation bias) – or the reverse: that the jury will only remember the witnesses they heard most recently.

• The possibility that a juror will research the case or issues on the Internet and, based on adverse publicity, reach a decision unrelated to the trial evidence?

Evidentiary issues such as:

• Losing an important in limine motion. 

• The possibility that the client’s fact or expert witnesses may unexpectedly under-perform, become unavailable, or otherwise are compromised by undisclosed testimony in other cases or unforeseen credibility lapses.

• Unexpectedly overperforming opposing witnesses.

• The difficulty and possibly boring nature of having to present evidence in a lengthy, virtual hearing.

• The risk in multi-party cases, such as construction disputes, that parties necessary to your client’s case may settle before or at trial, leaving your client to present its case alone.

Judicial issues, including:

• Judicial bias, undisclosed or not.

• Unfavorable jury instructions or special verdict form.

Post-trial issues:

• The risk of bad publicity.

• The financial risk of an adverse judgment on other client agreements or relationships.

• Uncollectability of your client’s anticipated, successful money judgment or fee award.

• Unfavorable result on appeal, including the cost of retrial.

Mediation offers a unique challenge to outside counsel to provide their clients the valuable and, indeed, indispensable service of rationally identifying and evaluating the merits and risks of their side of a dispute. Undergoing a disciplined process of identifying and analyzing messy and unwelcome facts as part of mediation preparation should help clients face unpleasant truths. Only then can the client feel confident in deciding whether the other side’s settlement offer really is a better alternative to trial.

Author Patricia H. Thompson, Esq., FCIArb, is  a full-time neutral at JAMS, with experience conducting virtual and in-person mediations, arbitrations and other ADR proceedings in construction and other complex commercial disputes.

Amendments to the ICC Arbitration Rules

The International Chamber of Commerce (ICC) launched a new version of the Arbitration Rules, which entered into force on January 1, 2021. Even if there are no substantial changes, it is important to be aware of the new additions because those amendments address the arbitral procedures in a way that fits the new ‘remote’ reality.

Much has been written and spoken about the post COVID era and the need for technology, not only during the pandemic, but hereinafter. Thus, the purpose of this article is not to be reiterative in that sense, but to remark that some institutions are making efforts to comply with the challenges that this era will demand.

Having said the foregoing, I recall that in a prior article I stated that we transitioned our daily activities almost automatically, giving as examples that arbitration hearings are now being held via videoconference; and also construction-related hearings are using BIM Modeling technology as well as drones in order to know the status of the projects in real time.

In that regard, it is worth noting that the ICC is amending the arbitration rules accordingly by optimizing the use of technology in the written briefs as well as in the way to hold the hearings. Please note that the optimization of the use of technology is not the only amendment to the arbitration rules, but this article will address that change only.

With respect to the written briefs and communications, the new version of the ICC Arbitration Rules, in articles 4 and 5, provide that electronic transmission instead of hard copies is the default method of submitting documents. Even though this was already the general practice, the fact that it is incorporated in the ICC Arbitration Rules represents a good step toward the new reality.

Regarding the use of technology in hearings, article 26 (1) of the new version of the ICC Arbitration Rules, establishes that the Arbitral Tribunal has the authority to decide if the hearing will be held in person or remotely. Such decision will be taken, of course, after hearing the parties and taking into account the circumstances of every case.

Also, it is well known that paragraph (2) of article 25 of the 2017 ICC Arbitration Rules generated some controversy because its reference to “in person” left open to interpretation by some litigators that final arguments shall be in person only.

The new version of the ICC Arbitration Rules solved this issue by removing this paragraph, so there is no doubt that, interpreted jointly with article 26, the hearing can be held remotely.

The amendments addressed in this article are consistent with the nature of arbitration, i.e. a flexible arbitration that has to fit the requirements, not only of the parties, but also to the current reality, which demands increased use of technology as practical.

Litigation and academic topics apart, I wish to my readers and to everybody in the Construction Forum of the American Bar Association, a very good 2021.

I hope to keep in touch in the new year and wish you a 2021 full of good vibes.

Author Juan Pablo Sandoval García is an Associate at COMAD, S.C. (www.comad.com.mx). His email address is jpsandoval@comad.com.mx.

Florida Supreme Court Amends Summary Judgment Rule Effective May 1, 2021

Division 1 member, Richard Asfar, Partner at Cotney Construction Law, Tampa, Florida, sent us this rule update issued on New Year's Eve by the Florida Supreme Court.  

* * *

For decades, Florida’s summary judgment standard has been among the most stringent in the Country. One intermediate Florida District Court of Appeal has explained that under that standard, “The burden is on the moving party to demonstrate conclusively that the nonmoving party cannot prevail,” and that summary judgment is improper where “the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist[.]” Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla. 2d DCA 1979) (emphasis supplied). As a result, Florida lien claims and construction defect claims are less likely to be resolved in whole or part by summary judgment.

That all changed on New Year’s Eve, when the Florida Supreme Court announced it was amending the Florida rule of procedure governing summary judgment motions, Florida Rule of Civil Procedure 1.510. As amended, Florida’s summary judgment rule “shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).” The amended rule goes into effect on May 1, 2021.

The Florida Supreme Court did not engage in a stare decisis analysis when amending Florida’s summary judgment rule, but it did note that the amendment “align[s] Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” In re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490 at *2 (Fla. Dec. 31, 2020).

The rule change should reduce Florida movants’ summary judgment burden. Significantly, movants will no longer be required “to conclusively negate an opposing party's claim before the burden shifts to the nonmoving party.” See, Wendel v. Mease Hospital, Inc., 291 So. 3d 1000, 1001-02 (Fla. 2d DCA 2020) (citing Celotex Corp. v. Catrett, supra). Also, the amended standard will permit the trial court to “assess the proof and ‘where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ ” Lopez v. Wilsonart, LLC, 275 So. 3d 831, 834 n.1 (Fla. 5th DCA 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587). The upshot for construction attorneys is that the amended Florida summary judgment standard will result in more Florida lien claims and construction defect claims being resolved at least in part by summary judgment.

The Florida Supreme Court has not yet expressly stated how or whether the rule change will apply to existing cases. But generally, in Florida, procedural or remedial changes “are to be applied retrospectively and are to be applied to pending cases.” Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Also, in a companion case, the Florida Supreme Court noted that it was affirming the reversal of a defendant’s summary judgment under the old Florida standard “without prejudice to the [movant’s] ability to seek summary judgment under Florida’s new summary judgment standard, once our rule amendment takes effect.” Wilsonart, LLC v. Lopez, No. SC19-1336 (Fla. Dec. 31, 2020). Accordingly, Florida construction attorneys should be prepared to have this rule change apply to all cases, even cases that have been pending for years, on May 1, 2021.