TOP TAKE-AWAY SERIES: The 2023 Mid-Winter Meeting in Puerto Rico

It was great seeing so many D1 members at FCL's mid-winter meeting in San Juan, Puerto Rico last week!  To help sum up the amazing programming and social events, the Dispute Resolver team has established a new "Top Take-Aways" series  that will run following each of our in-person Forum meetings. Since there is no way a single perspective can possibly capture all the learnings from these events, we encourage our readers to share their own thoughts by adding a comment following the post. Below are my top 10 take-aways from this year's mid-winter meeting. What are yours?

10. Puerto Rico is still recovering from Hurricane Maria. It's not often (if ever) that a sitting governor takes the time to stop by our Forum events. That is likely why this meeting's keynote speaker -- the Honorable Pedro R. Pierluisi, Governor of Puerto Rico -- was particularly noteworthy in his own right. An attorney of 35 years who practiced construction law before pursuing a life in politics,  Governor Pierluisi spoke at length on the widespread infrastructure improvements which are just now getting under way following the widespread devastation caused by Hurricane Maria (a category 5) in 2017. It was difficult to hear that some Puerto Ricans were without power for almost a year following this event. Governor Pierluisi reminded us that, while Puerto Ricans are U.S. citizens, they lack many of the benefits which we take for granted. While Puerto Rico is represented in the U.S. Congress, for example, their representatives can introduce bills but not actually vote on them.

9. Pre-fab and modular construction presents new contractual challenges. Although not by any means a "new" technology, according to Ronald Ciotti, Bruce Merwin, and Kristin Protas, modular construction seems to be having a moment. Of course, COVID could have something to do with that. The use of pre-fab construction allowed builders to rise to the challenge presented by the pandemic by increasing bed capacity in a fraction of the time compared to conventional construction. That said, notwithstanding greater acceptance of pre-fabricated and modular construction techniques, until recently, there was no form contract designed to address the unique issues that may arise when project participants rely on this form of construction. In light of the hybrid nature of what is both a "good" and a "service," particular consideration needs to be given on the applicability of the UCC. Special attention also needs to be given to flow-down considerations, termination clauses, inspection rights, and, the interplay of various legal regimes. If your clients are considering off-site construction and you are looking for form contract language, you might consult ConsensusDocs 753 (standard form agreement between constructor and prefabricator) and ConsensusDocs 253 (standard form agreement between owner and prefabricator) as a starting place.

8. "Private judging" could offer litigators the best of both worlds. Available by stipulation in some jurisdictions, "private judges" can be selected by the parties to preside over cases pending in a court of law. Although the costs of the private judge are split by the parties, they are not the same as an arbitrator, most notably because the legal issues in any opinion rendered by a private judge remain appealable within the court system. According to Luis Pratts, John Freud, and Bobby Moore, the advantages to private judges are many and include greater control over who will be deciding your case and greater control over scheduling. So far, not all states have a private judge statute but, if the trend catches on, this could present a "best of both worlds" scenario where without sacrificing the speed and efficiency traditionally afforded by arbitration.

7. The world's largest distillery of premium rum is in Puerto Rico. Although rum was not invented in Puerto Rico, we were advised that it was most certainly perfected there. I learned this and many other important skills (like how to make the perfect mojito) at the Division 1, 7, and 11 social event at Casa Bacardí. Another fun fact about rum and Puerto Rico: the piña colada was first concocted there. Exactly where on the island the piña colada was first served is hotly disputed so the discriminating traveler would be wise to try them all. Click on the video below to watch D1, D7, and D11 mixing up a hand-shaken piña colada at Casa Bacardí:

6. There is risk with reward when it comes to the Infrastructure Investment and Jobs Act (“IIJA”). While everyone is jumping at the bit to get a piece of the $1.2 Trillion IIJA pie, contractors need to understand how to safely take a slice without exposing themselves to undue risk under the Federal and State False Claims Acts. Andy Howard, Justin Barkowski, and Matt Gillies cautioned that, virtually anything that could justify withholding of payment to the contractor could justify a false claims act. With a whistleblowing provision to tempt disgruntled workers and treble damages for every false "claim" (which itself could be interpreted broadly as every pay app, every RFI, etc.) the panelists aptly referred to these acts as "company-killing statutes."

5. The best trial attorneys are good storytellers. There's a reason why it is important to have a compelling theme/theory of your case and, as it turns out, it's grounded in science. According to Jeffrey Isler and Professors Carlos Concepción and Laura Rose, compelling story creates an emotional response in your listener. Emotion releases dopamine which helps your factfinder remember things. By using "functional MRI" studies (which image the brain while it is working), we know that memories are broken down and stored in different parts of the brain. A good story can be the "glue" that helps a factfinder accurately reassemble the various pieces of the case. Story aids in retention, invests the factfinder in the outcome, and helps the factfinder test the veracity of the witness against their own real life experience.

4. The labor and supply chain issues which we saw during COVID are not over. The manufacturing industry is still experiencing a labor shortage, caused in part by COVID and in part by reduced labor force participation. Danny Jarrett, Jennifer Therrien, and Mike Cortez spoke of the economic factors leading to price escalation on construction materials. There is scarcity due to the reduced capacity leading to higher prices. Manufacturers have been forced to increase wages to entice good workers which, in turn, leads to increased prices. While increased wages for laborers may seem like a positive development for the laborers, the inconvenient truth is that these workers actually have less purchasing power than before after taking into account inflation and price increases.

A photo of Arecibo from our site visit

3. Puerto Rico will likely never recover from the loss of the Arecibo Observatory. On December 1, 2020, the Arecibo radio telescope collapsed after almost 60 years in operation. As critical as it was to mapping asteroids and pulsars, we learned that the telescope represents much more than the sum of its science to the Puerto Rican people. John Abruzzo of Thornton Tomasetti provided an informative presentation on the cause of the collapse and the post-event clean-up. I was surprised to learn that the collapse of the telescope was anticipated and that, at the time of the collapse, Thornton Tomasetti was making plans for the telescope's intentional demolition. Thanks to the generosity of John Abruzzo, a small group of meeting attendees were able to visit the Arecibo site and hear first-hand from the scientists that still work there (mostly analyzing historic data that the telescope had collected before the collapse). The sadness in the room was palpable when we were told that, rather than spend the $750 million or so that it would cost to repair the telescope, the National Science Foundation has announced that it intends to permanently close the facility in August.

2. Artificial intelligence presents a double-edged ethical sword for attorneys. Attorneys can no longer afford to stick their head in the sand when it comes to understanding the artificial intelligence revolution and what benefits (and risks) it may present for their clients. This was but one of the messages conveyed by the ethics panel, comprised of Jim Doppke, Sanjay Kurian, and Catherine Delorey. Attorneys have an ethical duty under Model Rule 1.1 to educate themselves on what AI is and how it can be most effectively employed. And, when attorneys choose to employ these tools, they invoke another ethical duty under Model Rule 5.3 to supervise the AI tool as “nonlawyer assistance” and ensure it is performing correctly. To avoid being caught in this Catch 22, attorneys should strive to gather a keen understanding of the workings of AI tools.

1. Puerto Rico is an amazing place! Attending Forum events is not ALL about the great CLE and amazing networking. If one of the reasons these events rotate from location to location is to give us all a chance to experience different cultures, then Puerto Rico takes the cake. Karen Denys and Jason Quintero did an amazing job putting together a wonderful program and schedule of activities. Puerto Rico was full of excellent food and endless adventure. Thankfully, my memories of rainforest rope swings and colorful coral reefs will remain long after my bruises from these exciting adventures finally subside.

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Author Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.