 |
| A view of Point State Park Fountain |
Over 500 construction law attorneys and consultants convened last week at the confluence of three rivers in what became the first-ever meeting in Pittsburgh, Pennsylvania of the ABA Forum on Construction Law. The Steel City was a fitting backdrop for a meeting focused on issues of design in construction. Thanks to the hard work of many, most notably the newly minted Forum Chair Keith Bergeron and Meeting Coordinators Kendall Woods and Michael Clark, the meeting's attendees brought home new connections and a host of new lessons learned. Read on for my top 10 take-aways from the 2024 Fall Meeting in Pittsburgh and feel free to share yours in the comments below.
10. An architect's standard of care does not require perfection. A common refrain across many of the meeting's plenary sessions was that any design that is produced by human hands will never be perfect. In recognition of our own fallibility, the legal standard to which design professionals will be held to account does not require that their designs be error-free. A design professional must generally exercise the degree of care and skill ordinarily exercised by professionals performing similar services under similar circumstances. Establishing what that means in each locality will vary and will most likely need to be supported by the expert opinion of another practicing design professional.
9. Attempting to contractually alter an architect's standards of care is fraught with peril. Zealous contract attorneys who attempt to modify the form contract documents to alter the architect's standard of care may end up doing their clients more harm than good, per panelists Andy Manuel, David Zion, and Luke LaRocca. On one hand, an owner's attorney who attempts to raise the architect's standard of care by drafting in a requirement that the architect perform "best possible" or "five-star" services will have difficulty administering the contract and waste time in any dispute attempting to prove what these terms mean. They may also unwittingly draft the architect out of its professional liability coverage. On the flip side, any attempts by an architect's attorney to lower the customary standard of care may ultimately be found to be contrary to law and/or public policy and be unenforceable.
 |
| "Together" by KAWS |
7. When it comes to document discovery, linear reviews are a thing of the past. Kicking off a three-installment series on discovery in construction litigation, the Practicum in Pittsburgh focused on document management. Lisa Colon, Anthony Gambino, Carolyn Southerland, Frank Wisehart, and Kat Meyer led an informative discussion on best practices controlling discovery costs in construction disputes, which are notoriously document-intensive. Chief among the wisdom offered was the admission that performing a linear review of every discoverable document prior to production is no longer the way. Advocates and their attorneys need to get comfortable with the idea of: (i) leveraging technology to bring the most salient documents to the fore and (ii) producing sight unseen those documents which are responsive but unlikely to be critical (or privileged).
6. Generative AI carries with it a myriad of ethical considerations. So-called "generative AI"—the autonomous creation of new content, data or outputs that mimics or resembles human-created content—continues to influence the practice of law. Attorneys cannot ignore the potential benefit that generative AI might bring to their clients; nor can they rely on it wholesale without careful consideration. Niloy Ray and Pasha Ameli cautioned meeting goers about the delicate tightrope that must be walked when generative AI is concerned. Per ABA Model Rule 1.1, a lawyer has a duty to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Attorneys should consider whether generative AI can benefit their cases and their clients. But, any attorney choosing to use generative AI in their practice must take special precautions to communicate this fact to their clients, supervise the AI as it would any "non-lawyer" member of its team, and protect the client's confidential information.
5. BIM is the wave of the future. Building Information Modeling (or BIM) has come a long way since it was first developed. Design professionals were historically reticent to even show their BIM models to owners and contractors (let alone certify the models as a tool for construction. That attitude is changing according to panelists Connor Christian, Rachel Riopel, and Kristine Kubes. In some jurisdictions, BIM is not only being used to supplement the drawings but actually replace them. Referred to in practice as Model as Legal Document (MALD), several states have already endorsed using a BIM model to replace 2D plans on construction projects. More states are in pilot projects involving MALD and are soon to follow suit.
4. Construction administration services should not be seen as optional. Owners are often motivated to keep project costs down may perceive construction administration (CA) services by their design professional as a luxury they simply cannot afford. According to James Germano, Misty Gutierrez, and Matthew Ninneman, owners do themselves (and their projects) a disservice if they elect to forego CA services. Without the architect's involvement in the construction process, there is no natural answer for who will have the responsibility to authorize product substitutions/alternates, review pay apps, certify the progress of the work, and prepare the punchlist (among other tasks). Without someone qualified to fill this role, mistakes may be made, disputes may arise, and the project may suffer.
3. If a picture is worth a thousand words, a visualization may be worth a million. At a lunchtime presentation to Divisions 1 and 4, Thanh Do and Jade Davis demonstrated how video data visualizations can be used to better explain complex concepts and failure mechanisms to a lay person fact finder. Taking a case study involving a crane collapse, Thanh (from Thornton Tomasetti) showed how creating a visualization of how a pin mechanism fit together was much easier to grasp compared to the line drawing. While visualizations can be incredibly powerful tools to, in order to ensure you will be permitted to present such illustrations to the fact-finder, it is important to ensure that they are accurate and not unduly prejudicial or confusing.
 |
| Side-by-side comparison of a line drawing (left) and visualization (right) of crane pin assembly |
2. Good design is about more than code compliance. Construction litigators focus their time on projects in peril and rarely think about the creative inspiration from which they germinate. But so many of the design professionals who spoke in Pittsburgh underscored the idea that the design professional's goal is to push the boundaries of what is possible and imagine the future. Good design is about more than complying with codes but understanding and capturing how a place will be experienced and live in the minds of people.
1. Design can help heal communities torn apart by tragedy. Carla Swickerath, an architect with Studio Libeskind, spoke at the meeting on behalf of the design firm that served as Master Planner for the World Trade Center site following 9/11. Carla spoke passionately of the symbolism that imbued the design process, including the desire to ensure that the sun would shine on the site without shadow during the morning of every September 11 and the decision to make the surviving "slurry wall" a prominent feature of the new museum as a way of underscoring that our nation's foundation remained strong. Studio Libeskind is making similar design choices to re-imagine and expand the Tree of Life Synagogue in Pittsburgh following the tragic events of October 27, 2018 when 11 people were killed in the deadliest antisemitic attack ever witnessed on U.S. soil. Central to Liebskind's design concept is creating a "Path of Light" skylight that will effectively "bring light to the darkness" of that tragic event.
No comments:
Post a Comment