Hiring the Right Expert For Your Construction Dispute

Construction projects are complex undertakings, typically involving multiple parties, intricate contracts, and significant financial investments. With so many moving parts, it’s no surprise that disputes often arise over delays, defects, payment issues, or contract interpretation. When these disputes escalate to arbitration or litigation, the technical and specialized nature of construction means that lawyers and judges often need help understanding the facts. Hiring the right expert can make all the difference – but where do you start?

Do I Really Need an Expert?

Construction disputes are complicated. They often hinge on technical details that raise questions requiring specialized knowledge to answer. Without expert analysis, it can be difficult to establish what actually happened, who is at fault, and what damages are appropriate.

Experts bridge this gap by providing objective, professional opinions based on their training and experience. A good expert can explain complex issues and present them in a manner that is understandable to non-specialists. Their advice, reports, and testimony can be pivotal in determining the outcome of a case.

Types of Experts 

The type of expert needed depends on the nature of the dispute. Here are six of the most common:

1. Construction Delay Experts:

These professionals analyze project schedules, identify causes of delays, and determine whether those delays were excusable or compensable. They often use critical path method (CPM) scheduling to provide a clear picture of how and why a project fell behind.

2. Cost Estimators and Damages Experts:

When the dispute involves claims for additional costs or damages, a cost estimator or forensic accountant can assess the validity of those claims by determining the cost of labor, materials, equipment, and other expenses. They analyze invoices, change orders, and project records to determine an accurate project cost.

3. Architects and Engineers:

If the dispute centers on design defects or construction quality, architects and engineers can assess compliance with building codes and standards, evaluate structural integrity, and determine the cause and extent of damages due to structural failures.

4. Construction Safety Experts:

In cases involving accidents or injuries, safety experts can review site conditions, safety protocols, and compliance with OSHA or other regulations to determine if proper procedures were followed.

5. Materials and Geotechnical Experts:

Sometimes, disputes arise from issues with materials (like concrete, steel, or roofing) or site conditions (such as subsurface soil stability). Experts in these fields can analyze how materials including soil or rock behave under various conditions, can test materials, review lab reports, and provide opinions on whether materials or site prep contributed to the problem.

6. Construction Contracts Expert:

These professionals interpret contract documents, evaluate performance and compliance, and assess scope changes, delays, or additional costs related to construction projects.

Five Ways Experts Can Help Resolve Construction Disputes

1. Clarifying Technical Issues:

Experts break down complex technical matters into clear, understandable explanations. This is invaluable for judges, juries, and the parties involved.

2. Providing Credibility:

A well-qualified expert lends credibility to a case. Their objective, professional opinion can carry significant weight in negotiations, mediations, and at trial.

3. Supporting or Refuting Claims:

Experts can support a party’s position or challenge the opposing party’s claims. For example, a delay expert might show that a delay was caused by unforeseen site conditions rather than contractor negligence.

4. Assisting With Settlement:

Many construction disputes are settled before trial. Expert reports can help parties and their counsel understand the strengths and weaknesses of the case, facilitating more informed settlement discussions.

5. Testifying in Court or Arbitration:

If the case does not settle, experts can testify as witnesses, explaining their findings and opinions to the judge or jury.

Timing of Expert Involvement

Early involvement of an expert is generally advantageous for several reasons:

• Early Case Assessment: Experts can assist in evaluating the merits of a case before significant resources are committed to litigation.
• Preserving Evidence: Construction sites change quickly. Early expert involvement allows for site inspections, sample collection, and documentation of conditions before evidence is lost.

· Discovery and Depositions: Expert input can allow for more precise and effective discovery requests and deposition questions, ensuring the information needed to support a case is obtained.

• Facilitating Settlement: Early expert reports can encourage settlement by clarifying the facts, narrowing the issues in dispute, and lending credibility to claims or defenses.

Delaying the retention of an expert can result in missed opportunities to gather critical evidence or allow the opposing party’s expert to shape the narrative.

Conclusion

Construction disputes are a high-stakes, technically demanding arena. The effective use of qualified experts can be critical for resolving disputes efficiently and effectively. For litigators, involving experts early in the process provides the technical insight and credibility needed to achieve the best possible outcome for clients.

Engaging experienced construction litigation experts at the appropriate stage can help navigate the complexities of a case and facilitate a successful resolution.

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Lauren McGinley is a member of Fox Rothschild’s Litigation Department. For more information, please contact her at lmcginley@foxrothschild.com.

This article is provided for informational purposes only—it does not constitute legal advice. Readers should consult legal counsel before taking action relating to the subject matter of this article.

 

Meet the Forum's In-House Counsel: JOHN KIMON YIASEMIDES

Company: AYA Consulting

Email: Kimon.Yiasemides@AYAConsultingllc.com

Website: http://www.ayaconsultingllc.com

Law School: University of Maryland 

States Where Company Operates/Does Business: Based in the Washington DC area, operates globally

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Q: Describe your background and the path you took to becoming in-house counsel.

A: My background is unique; one that spans many aspects of construction management and construction law. At a recent conference someone referred to me as an anomaly, which I took as a compliment, although I would prefer to refer to myself as a Renaissance Man of Construction Law! My background in construction began with my degree in Construction Management from the University of Florida’s ME Rinker School of Building Construction. Thereafter, I was hired by Centex’s commercial construction division to manage large-scale commercial and educational projects in central Florida. After six years with Centex, I obtained my Juris Doctor from the University of Maryland’s School of Law. In the year prior to law school, I worked as an expert witness with Hill International in Washington D.C. While I also spent some time working for the law firm of Ober Kaler in Baltimore during law school, I decided that what I enjoyed the most was the expert work where I could put the pieces of the puzzles together using forensic analysis. After law school and passing the bar in Maryland, I was able to put both aspects of my education to work by working as an expert and filling the role of in-house counsel for Warner Construction Consultants, Inc. where I worked for 11 years. That experience, along with four more years working at Navigant/Ankura, helped round out the experience that I now employ as a consultant. 

Q: Where do you focus your work? Do you have a specific geographic area?   

A: I now work anywhere in the world. For example, within just the last year or so I worked on cases from Australia, Europe, the middle-east, and across the US. In fact, I have had projects in 6 of the 7 continents over the years (you can probably guess where I haven’t yet had a project). I often explain that I have worked on everything from the Burj Khalifa (the tallest building in the world) to a ‘Naked Pizza’! (It was a local make-your own pizza place, don’t get too excited). But, the in-house type of work I perform is all domestic. 

Q: What kind of work do you do?   

A: The work I do now is in several different capacities. At the most basic level, I can help projects that are struggling with difficult scheduling issues that need a hand navigating large delay impacts while the project is underway. If the dispute needs a third-party expert for forensic schedule analysis or damages assessments, I can also help in that capacity. But I also help companies who need supplemental in-house counsel services when their workload has become too great (for any variety of reasons). Working in these various capacities provides me a way to utilize all of my unique experiences and background. This is why I love working as an independent expert, as I have been doing for the past five years now.

Q: How and when do you interact with outside counsel? In what kinds of matters?   

A: In addition to the roles I just described, I can be of assistance with outside counsel when there are discovery management issues, helping them navigate the best way to find, organize and manage key documents, some of which can only be viewed with specialty software. I can also help interpret, communicate and navigate the construction landscape in a way that helps accelerate their understanding of the case. I have been on both sides: defending depositions and being deposed, preparing discovery and reviewing discovery, and writing contracts and reviewing disputed contracts. This unique experience can provide valuable perspective. 

Q: How can outside counsel best serve a construction company? 

A: I think the best outside counsel are those who can listen and understand the issues in the case and get their hands around the facts so that they can put forth the best arguments. I always say, “the party most in command of the facts most often wins.” When I am working as a third-party expert witness, if outside counsel can hire me early, I can help them get in command of those facts. But if they wait until a month before the expert report is due, it can be a real struggle for us both. Having said that, I would say a proactive lawyer with a clear plan of attack and foresight to know what she will need is optimal. For example, if I am hired before discovery starts, it doesn’t mean she will have me working full-time right away. Rather, I will likely spend a few hours on the matter to provide input on the discovery process (or anything else she needs input on) in order to help with her game-plan moving forward, which is often well worth it in the end.

Q: What qualities/characteristics do you think are helpful to have in a mediator or arbitrator? 

A: Whomever it is, the person must be properly prepared. I have encountered, more than once, hearings in which I am explaining facts in the case on direct testimony, and I can just tell that the arbitrator(s) has not read and does not understand the pleadings and pre-trial briefs in the case. After all the efforts the parties spend in distilling the case in their complaint and pre-trial or mediation briefs, to then see that it was not carefully read and re-read, is such an inexcusable waste. I also always recommend picking an arbitrator or mediator with a construction background, such as a former or seasoned construction litigator. This facilitates their understanding when describing the scenarios of what happened as there is generally no time to bring them up to speed on construction terms and practices. 

Q: What are some characteristics of the best outside counsel you have encountered? 

A: The best attorneys I have worked with are those who at their core are concerned about helping their client reach the best outcome. Sometimes that means reaching an early settlement, while other times it means taking the case all the way to trial. But a firm conviction to making sure the outcome is in the client’s best interest is key. I don't think outside counsel that argue points just for the sake of arguing is an effective or palatable strategy to most in-house counsel. And, I would also say, be creative in getting to yes!

Q: What are some of your interests or hobbies? 

A: I have many interests, or I wouldn’t be able to call myself that Renaissance Man, would I? I would say on top of my list are coaching soccer and other sports for my boys and jamming with them as a jazz trio (still working on that one; I play saxophone, my oldest plays trumpet and my youngest is a drummer…it’s a start). I also enjoy skiing and other recreational sports to stay fit, and someday when my nest is empty, I’ll return to volunteer somewhere again like Habitat for Humanity.

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Assistant Editor-in-Chief Jessica Knox is a Partner in the Minneapolis office at Stinson LLP. She represents owners, general contractors, and subcontractors in litigation disputes. Jessica can be contacted at jessica.knox@stinson.com. 

Message from the Chair: Joe Imperiale (Volume I)

I am honored to take over as the Division 1 Chair from my friend, Kelsey Funes. Kelsey was an outstanding Chair and continues to do great work for the ABA Forum as she assumes her new position on the Governing Committee. 

For those of you who don’t know me, the following is a little about my background. I grew up in the Philadelphia area, where I still live and practice. I am the Managing Partner of the Philadelphia office of Troutman, Pepper and Locke, and am a partner in the firm’s Construction Practice Group. I have been at the firm (or its legacy firms: Pepper Hamilton and Troutman Pepper) my entire career and have always focused my practice exclusively on construction. For over 20 years I have been lucky enough to handle construction disputes all over the country and world, associated with a range of projects on behalf of owners, contractors and designers. It has been exciting to be part of my firm’s growth, and with over 50 fully dedicated construction lawyers, I have a great group of colleagues to work with on construction matters. 

My wife Lydia and I have three children. My son is a high school junior and my daughters are in 8^th grade and 4^th grade respectively. My kids are busy with various sports and other activities so when not working, I am taking them one place or another. 

I attended my first meeting Forum meeting 20 years ago in San Diego and have been attending ever since. Because my practice is focused on litigation, I gravitated to Division 1. A little over 10 years ago I decided I wanted to become more involved and reached out to then Division 1 Chair, Nick Holmes. It was one of the best professional decisions I ever made. Nick embodies the Forum. He made taking on “more work” in a volunteer capacity equal parts fun and rewarding. And Nick introduced me to a group of Division 1 Forum leaders, who are friends to this day, which include Tony Lehman, Tom Dunn, Cassidy Rosenthal, Kelsey Funes, Rob Ruesch, Jason Rogers Da Cruz, and Scott Griffith. I served on the Division 1 Steering Committee when Nick, Tony, Tom, Cassidy and Kelsey were each chair, all of whom advanced Division 1 to make it a part of Forum that serves hundreds of construction lawyers that practice in litigation, arbitration and dispute resolution. The current Division 1 Steering Committee is comprised of Catherine Delorey, Katie Kohm, Marissa Downs, Jessica Knox, Jade Davis, Katie Anand and Brett Henson.  I look forward to working with this talented group as we continue the great work of Division 1.  

I’m looking forward to seeing many of you in Louisville at the Forum’s Fall Meeting. We will be kicking off the meeting with a 2-hour planning retreat on Wednesday morning (September 2) at 10 am, which any Division 1 member should feel free to join. 

On Wednesday afternoon we are presenting another fantastic practicum, Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes, in which Harper Heckman, Chris Dunn and Matt Gillies will tackle the topic from the owner, contractor and designer perspectives. 

On Friday (September 5), our luncheon presentation is "Selecting the ‘Right’ Dispute Resolution Procedure" led by Creighton Sebra and Sean Dillon, which should not be missed by anyone who drafts contracts or handles disputes. 

Finally, on Thursday evening, we will have a great time socializing with Division 1 friends new and old at Barrels & Billets tasting room. A special thanks to FTI Consulting, and friend of Division 1 Eric Schatz for sponsoring the event. For tickets, contact John Gazzola (John.Gazzola@troutman.com).

If you are attending the Fall meeting, I invite you to join us for all of these outstanding activities.

I look forward to working with all of you and encourage anyone with program ideas and suggestions to reach out to me.

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Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.

Perspectives from Pioneers: Kenneth C. Gibbs

Pioneers are not only skilled practitioners, but boundary-setters. Those who have helped define what is possible in their field. Their voices offer both experience and foresight. In this inaugural edition of Perspectives from Pioneers, I asked Kenneth C. Gibbs, Esq., widely regarded as the Dean of Construction Dispute Resolution, to share insights from his extensive career mediating, arbitrating and conducting neutral evaluations in multi-million-dollar construction, energy, insurance and other business disputes. Ken, a pillar in the construction industry, has successfully mediated more than 2,500 cases and arbitrated over 200 cases in 25 states involving bridges, dams, arenas, highways, subways, tunnels, airports, hospitals, hotels, office buildings and other major projects.

Globally, you are considered a pillar of the construction mediation and arbitration industry. How did you achieve this?

Being considered a “pillar” or a “pioneer” of the construction ADR community is a bit embarrassing for me, as I still consider myself a simple country lawyer.

I’ve been extremely fortunate in my career. In 1974, upon graduation from law school, I was immediately involved in, at that point, one of the largest construction disputes in California history—the construction of the Cedars-Sinai Medical Center in Los Angeles—where I was the co-first chair in the representation of the general contractor and its subcontractors. Immediately following that, I led a team to a successful result involving a major construction project at the San Francisco Airport. So, at 32 years old, I was an “expert” construction litigator with a growing reputation.

Through promotional efforts and word of mouth, the firm that I started in 1978 with two attorneys quickly grew; by 1988, we had about 40 attorneys. By that point, I had attracted 5 of the 10 largest contractors in California as clients and had also attracted a large number of public agencies, including counties, cities and various school, water and other districts. Meanwhile, I co-authored a text titled California Construction Law, which was cited in several court cases. I traveled around the country giving seminars on construction law with, of course, an emphasis on California.

Because of these efforts, by the 1990s I had acquired a reputation as one of the top practitioners of construction law in the country, and my firm had become the largest “boutique” law firm specializing in construction west of the Mississippi.

Throughout my career, I had always dabbled in arbitration. I was on the large and complex construction panel of the American Arbitration Association (AAA) and was one of AAA’s “go-to guys” in California for high-value construction cases. Beginning in the late 1970s, I did about four arbitrations per year and received positive reviews. By the late 1980s, it became clear that mediation was emerging as an efficient way to resolve complex construction disputes. In the late ’80s and into the ’90s I appeared as an advocate, representing clients in many construction mediations, and I very much enjoyed the process and the results I obtained. There were fewer mediators back then, and fewer still who understood construction law, so my “mentor”—unbeknownst to him—was the legendary Coley Fannin of JAMS. He came across as knowledgeable but relaxed, and just watching him in action taught me a lot. He drilled into my head that “the first thing you’ve got to do is to identify the impediments to resolution.” That line has stuck with me ever since.

By 1999, I decided that I really wanted to shift the direction of my career, so I sent a message to every attorney I knew around the country announcing that I was going to do ADR full time. I started off doing two mediations per month, which rather quickly became two mediations per week.  This snowballed to the point where I was doing three or four mediations per week, as well as arbitrations. I joined JAMS in 2007, and I’ve now handled mediations and arbitrations in 25 states. 

Do you have any advice on how to become a knowledgeable and highly respected construction neutral?

I think there are three keys to becoming a highly respected construction ADR neutral: subject matter knowledge, demeanor and the ability to read the room.

Not only does the construction industry have its own jargon and ways of doing things, but so too do advocates who come before you. Construction projects, and the disputes that can arise from them, are complex; it is essential that that neutral have sufficient subject matter knowledge to separate the wheat from the chaff. Knowledge of scheduling and cost principles, together with knowledge of applicable case and statutory law, is essential, whether in arbitration or mediation, for the neutral to get to the heart of a matter.

Another commonality between arbitration and mediation is the neutral’s demeanor. Calmness and control are needed in both to guide the process in an efficient and effective manner. I make every effort to listen and not show emotion or tip my hand when hearing disputes. In fact, in mediations, I generally start by going room to room to hear what the parties and their counsel have to say, without injecting too many of my thoughts as to the merits. I do ask “devil’s advocate” questions to find out information and demonstrate that I know the issues of the dispute, but a calm and thoughtful demeanor is necessary to gain the trust of all concerned.

Finally—and this is something that cannot be taught very easily—during mediations, a neutral needs to read the room by listening to what is said and noting what is not said, and even reading body language. Anyone can shuttle offers and counteroffers back and forth, but it takes highly skilled neutral to evaluate the true positions of the parties and figure out what will work and what won’t. If I have strength as a mediator, it is derived from my ability in this regard.

In the ADR community, it is generally accepted that not every mediator is a great arbitrator and, likewise, not every arbitrator is a great mediator. Despite this, you have managed to master both. What are the commonalities and differences in the practices? What are your suggestions to those who want to pursue both practices?

I completely agree with the proposition that not every mediator is a great arbitrator and not every good arbitrator is a good mediator.

Although there are commonalities in both practices, I think that there are also some different skill sets that come into play in arbitrations versus mediations. The general common skills in mediation and arbitration are subject matter knowledge, the ability to weigh the facts and know the law and the ability to listen.  The additional general arbitration skills are general knowledge of rules of procedure, award writing, and firm control of the process so that the matter is heard timely and in an efficient manner. The additional general mediation skills are risk evaluation, keen people discernment and observation, humility, and empathy.  These skills, while important in mediation, are less important in arbitrations.  The person who is able to blend the skills of both practices as well as the embrace the differences based upon the type of proceeding is more likely to find success as a both mediator and an arbitrator.

While generalities are always dangerous, I have found that judges who come off the bench usually make better arbitrators than mediators, perhaps because their adjudication techniques have been honed over years of hearing cases. I have also found that mediators tend to be more generalists and may not have practiced construction law.

I’ve found that lawyers who were in the trenches make the best mediators of construction disputes because they can recognize the strengths and weaknesses of the parties’ positions, having been there and done that. I think that is one of my strengths, and I think that it is a necessary element of being a top-notch construction mediator. There is no substitute for subject matter knowledge, and while a construction arbitration can certainly be handled by an individual—such as a former judge—who is used to hearing and evaluating arguments, the traits of a mediator in effectuating resolutions are much more subject matter oriented. 

There is no real need to read people in arbitrations other than to establish the veracity of the testimony they give. In mediations, it’s my opinion that reading people is one of the chief skills necessary. So, while there is crossover regarding evaluating the merits of a given matter, there is a different skill required to have the parties recognize the risks they run if the case goes to trial. This risk evaluation, coupled with the art of convincing the parties to realistically evaluate their risks, is the key to the mediation process and the key to being an outstanding mediator.

In your practice, what do you see evolving due to technology, supply chain issues, global stability, etc.? How are the industries in which you practice changing based upon the world today, and how is the ADR community adjusting to these changes?

ADR has certainly evolved in the last six years. In 2019, the thought of conducting virtual mediations and arbitrations via Zoom or other applications was way out there, and almost all ADR hearings were conducted in person. Today, more than 50% of mediations conducted by JAMS are virtual, and even those conducted in person usually have some participants appearing virtually in a hybrid hearing. Interestingly, my personal practice seems to bucking the trend. I estimate that 75% of my mediations are conducted in person, probably because the stakes of my mediations are usually very high.

Another major factor that is going to change the way ADR, and particularly arbitrations, proceeds is the introduction of AI into the process. I’m not an expert, but there is no doubt that AI will play a growing role.

Supply chain issues, tariffs and the global economy will continue to have an impact on construction projects and disputes arising therefrom. Whether an event is force majeure or a delay chargeable to a particular party in the construction process is certainly going to be up for debate as we go through the uncertainties of the current environment.

As you reflect on your body of work and your stellar career, what are some of the pivotal or significant moments, and what did you learn from those moments?

My 52-year career can be divided almost exactly in half: the first 26 years representing clients on major construction projects and the second 26 acting as an arbitrator or mediator of claims regarding construction. I had great luck and attracted some wonderful general contractor and design professional firms to represent early in my legal career. I formed a strong team, which included scheduling and forensic accounting firms, and we were successful on many projects, including major hotels, hospitals, prisons, office buildings, wastewater treatment plants and transportation projects. As my career progressed, I was given the opportunity to represent virtually every county in Southern California and at least 10 major cities around the state. One of my most memorable assignments was representing the Metropolitan Water District of Southern California when it constructed the seventh-largest earth fill dam in the world. My takeaway from all that work is to build a strong team, delegate work appropriately and always have your client’s best interest in mind.

It's hard to pick out one or two matters that I’ve mediated or arbitrated, but I take great pride in having helped resolve issues relating to airport construction in Los Angeles, Seattle, Salt Lake City, Dallas-Ft. Worth and New York. Additionally, I’ve enjoyed working on subway and light rail projects in New York, Los Angeles, Houston, Denver, San Francisco and Seattle. The saying “A mediation is not an event; it’s a process” comes to mind. All of the matters listed above took multiple efforts over a significant number of sessions. The lessons learned can be summarized by the thought that a mediator should never give up trying and should always follow up to see if circumstances have changed or evolved and may allow for a settlement.

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Author and Interviewer Lisa D. Love, Esq., FCIArb. is an accomplished arbitrator, mediator and neutral evaluator with JAMS who brings to her work as a neutral extensive experience as a complex commercial transactions attorney. Ms. Love has served as a neutral in a wide range of complex commercial transactions and legal disputes, including those focused on investments, corporate finance, securities, mergers and acquisitions, construction and infrastructure projects and development, energy, life sciences, licensing and technology transfers, franchises, commercial real estate, antitrust, government and public agency, and corporate governance matters.

What Everyone Needs to Know About Schedule Float

Scheduling for a contractor is essential and helps contractors organize work, manage subcontractors, and avoid costly delays. An accurate schedule helps a contractor to keep a project on track, meet deadlines and assist in preventing conflicts between different subcontractors working on a project. In short, construction scheduling is a key tool for completing projects efficiently and successfully.

There are different types of schedules including bar charts (Gantt charts), critical path method (CPM) schedules, look-ahead schedules, and linear scheduling for repetitive tasks. Each type serves a different purpose, from providing high-level overviews to detailed task sequencing and daily or weekly planning. CPM schedules are very common and often considered the best type of schedule because they not only illustrate the sequence of activities but also identify the critical path, helping contractors prioritize tasks, manage delays, and keep the project on time. A CPM schedule also highlights where there is flexibility or potential risk.

Contractors deal with deadlines on every project and meeting every deadline on a project can often feel like walking a tightrope. This is where schedule float or slack comes into play.  Understanding float is critical for successfully managing risk, making informed decisions, and keeping projects on track.  In construction scheduling, “float” is a term of art in critical path method (CPM) scheduling that represents the amount of time a given task or activity can be delayed without delaying the project’s overall completion date.[i] Activities that have float are considered non-critical, meaning they are not located on the project’s critical path.[ii] An activity with zero float is on the critical path. 

Modern scheduling practices distinguish between two types of float: “free float” and “total float.” Total float refers to the time an activity may be delayed without pushing back the project’s final completion date.^[iii] Free float is a subset of total float and is the amount of time an activity can be delayed without affecting the early start of any succession activity.[iv] Both types of float are important in scheduling but they serve different purposes. Float allows the contractor to define priorities and allows a contractor to resequence activities or reallocate resources as the project moves forward without causing delay. However, if a noncritical activity is delayed to the extent that all the float is consumed, then that activity moves onto the critical path.

The determination of float is based on the anticipated duration of each activity, which in turn is calculated by estimating productivity under reasonably foreseeable conditions.^[v] When an activity has positive total float, it is expected to finish on or before its late finish date, with actual timing depending on how much float is used as the work progresses. However, if an activity has negative float—meaning it is already projected to delay the overall schedule—then the critical path is affected, and the estimated project completion date is pushed back accordingly.^[vi] In such cases, the contractor may seek a time extension, resequence the work, take steps to accelerate, or accept the late completion and related consequences. 

Who Owns the Float?

When the contract does not explicitly allocate float, disputes often arise when the owner and contractor wish to use the same float to cover their respective delays. Over the years, three main theories have emerged among the parties: (1) the contractor owns the float, (2) the owner owns the float, or (3) the project (or “neither party”) owns the float. Disputes over float ownership frequently arise between owners and contractors, because both parties seek to use the float for their own benefit. Owners may claim a contractual right to control the float, while contractors generally want to retain control to maintain flexibility in their scheduling. 

If float is considered to be the contractor’s, then the contractor has the right to defer commencement of activities not on the critical path until the last possible date—effectively placing all of them on the critical path.[vii] Float can also allow a contractor to define priorities and resequence activities or reallocate resources as the project moves forward without causing delay.[viii] However, if a noncritical activity is delayed to the extent that all the float is consumed, then that activity moves onto the critical path.  In such a scenario, changes requested by the owner that affect the entire schedule, may entitle the contractor to a time extension, or additional compensation for acceleration of activities to stay within the schedule.

If the owner is entitled to the float time, the owner could cause delays in commencing any non-critical activity, leaving the contractor with no flexibility to adjust starting or completion dates for the affected activities.[ix] Thus, if sufficient float exists, then the owner can argue that there is no basis for a time extension.

In the absence of contractual provisions regarding ownership of float, the party using the float first generally owns it.[x] In other words, the “float” is a shared resource “owned by the “project” rather than by either the contractor or owner, and may be consumed by either party without liability to the other on a “first come” basis.  Float is an expiring resource that can be used by any party to the contract, provided that party acts in good faith. As a result, either party may use available float on a first-come, first-served basis, with no resulting liability to the other unless the delay extends beyond the float and impacts the project’s completion. 

Modern Jurisprudence: Shared or “Project” Float (First-Come, First-Served: Modern Rule)

An intermediate approach referred to as the shared-float concept has developed for when the contract is silent on float ownership. Under this approach, courts generally hold that a construction schedule’s float is available to the party who uses it first.[xi] Thus, a delay is mitigated by the float and does not delay the project; thus, the party responsible effectively benefits from the float and cannot be charged for a project delay nor claim one, as the case may be.

For example, in In re Blackhawk Heating & Plumbing Co., the General Services Administration Board of Contract Appeals focused on whether the Government delay alleged by the contractor resulted in a delay to the project completion date.[xii] On appeal, the Board determined that at the time of the Government delay, there was sufficient float available in the schedule for the Government to absorb its delay; therefore, there was no resulting impact to the project completion date.[xiii] The Board of Contract Appeal in In re Dawson Construction Co. denied contractors’ time extensions when the Government had caused delays and, rather than extend the project completion date, simply used the remaining float.[xiv]  

In In re Santa Fe, Inc., the contractor argued that time extensions were warranted due to changes made by the Government.[xv] The Government disagreed, asserting that the affected tasks had sufficient float and that the contract only allowed for an extension if all float associated with the activity had been exhausted. The Veterans’ Administration Board of Contract Appeals sided with the Government, reasoning that an equitable time adjustment is only appropriate when a Government-mandated change delays the project’s overall completion.[xvi] Since the delays were absorbed by existing float, no extension was justified.

Lastly, in Maron Const. Co., Inc., the contract included a provision stating that if the Government altered the work in a way that delayed the project’s completion, an equitable adjustment would be provided.[xvii] However, since the delay caused by the change could be accommodated within the existing float and did not push back the completion date, the Board concluded that no time adjustment was necessary.

In the absence of clear contract terms, float is generally treated as a shared project resource, available to whoever uses it first. Understanding schedule float is critical and learning how to use float to your advantage can provide flexibility dealing with delays without affecting project completion.

How to Manage the Scope & Costs of eDiscovery: Understanding the Recently Released AAA eDiscovery Best Practices

When you’re heading down the path toward litigation or arbitration, you have to collect and manage documents and files. These can be emails, drawings, spreadsheets, images, videos, text messages, reports, and anything else that you need to tell your client’s story. When managing electronically stored information (ESI), it’s crucial to effectively collect, preserve, review, and produce the ESI to avoid unnecessary delays and soaring costs.

This is so important that the American Arbitration Association (AAA) recently released a set of “E-Discovery Considerations for Construction Arbitrations” in conjunction with the National Construction Dispute Resolution Committee (NCDRC). The purpose of the paper is to “highlight for arbitrators and parties the need to actively manage the ediscovery process” to achieve an “efficient and cost-effective dispute resolution.” 

When you collect documents, emails, images, and files from your client, you have to store them somewhere. Regrettably, many firms simply copy them to a local server, or a cloud-based storage service such as Dropbox, or even their own computer. These are lax and risky workflows unless your firm has instituted security best practices, can track access logs, and can defensibly ensure no ESI is modified before production (see Consideration #5 on document preservation). Not to mention that these basic storage approaches don’t give you the ability to search, filter, and sort files, nor can you tag items for relevancy and privilege or indicate their use for a witness. It’s crucial to use the right tool for storing, reviewing, and producing ESI, as it will become the foundation for your defensible ediscovery workflow.

As the AAA report states, “Ineffectively managed ediscovery is a potential source of cost, burden, and delay. Because construction projects typically involve large volumes of records and data, managing ediscovery demands a careful balance between efficiency and economy on the one hand and providing the parties a full and fair opportunity to present their cases on the other.”

Here is a breakdown of some of the key themes from the AAA guidelines along with specific tips and tools to help you follow them properly and practically.

Consideration #1: Cooperation – Zealous Advocates Can Still Cooperate

In 2008, The Sedona Conference (a think tank on ediscovery issues) released the idyllic-sounding “Cooperation Proclamation,” which provided recommendations for achieving the goal of a “just, speedy, and inexpensive determination of every action” (Federal Rules of Civil Procedure 1). That goal is echoed in the first ESI Consideration from the AAA guidelines, which states, “Zealous advocacy is not compromised by conducting discovery in a cooperative manner.” Being willing and able to discuss the logistics of collecting, reviewing, and producing ESI with opposing parties is the first step in effectively managing the cost and potential burdens involved in ediscovery.

Federal Courts require a “meet & confer” between the parties where they discuss a number of topics, including the sources and types of potentially relevant ESI, as well as how the parties will produce files to each other. While there is typically no such requirement in arbitration proceedings, the AAA guidelines offer Consideration #3 – Initial Assessment and Planning, where the parties are encouraged to meet to “discuss the necessity of ediscovery” as well as the scope of such discovery. Consider using a Meet & Confer eDiscovery Checklist that provides tactical guidance for discussing and negotiating ediscovery with opposing counsel.

Consideration #3 also encourages the parties to “memorialize their agreements regarding ediscovery in a plan or protocol that outlines the types of ESI considered relevant, the timeframe for document production, and the methods for exchanging documents.” This “ESI protocol” is an indispensable instrument for avoiding unnecessary delays and costs around discovery in construction disputes, but unfortunately, it’s often overlooked or ignored. The AAA guidelines provide a helpful ediscovery checklist and ediscovery protocol template. An ESI Protocol eDiscovery Checklist can help you develop a protocol for your practice. Once you have a standard ESI protocol in place, it’s easy to edit and adapt it for different matters. 

Consideration #6: Collection and Processing – Choose the Right Platform to Securely Store ESI

As you work with your client to collect the data that will help you tell their story, you must collect it all “in a manner that preserves the integrity of the electronic information” (Consideration #6) and you must store the ESI in a secure location that prevents modification of the evidence. Most storage locations at law firms (e.g. servers, cloud-based storage services, etc.) are designed to host and manage your internal work product, but they are not the right tool for protecting electronic evidence. Fortunately, there are ediscovery platforms that are specifically designed to secure electronic evidence and provide precise tools that allow you to sort, filter, search, and tag evidence, separate from your work product. For example, your personal Microsoft Outlook is designed to manage your communications with colleagues and clients, but it is NOT an appropriate tool for reviewing and producing emails collected from a client (see “eDiscovery with Outlook: 3 Reasons Why Outlook is NOT a Document Review Tool”).

In the processing stage of ediscovery, the collected ESI is typically converted into a reviewable format while still preserving the original files. For example, when you import collected ESI into a document review platform, the original files are always available for download, but the reviewer sees a simplified, imaged version of the file for quicker review along with tools to redact text and place additional annotations. These platforms also filter out irrelevant or redundant files during the processing stage for a more streamlined review, although you can always access the original files if necessary. 

Consideration #8: Production and Exchange – A Smooth Handoff

The end goal of a successful ediscovery project is an effortless production of relevant ESI from one party to another. If you’ve discussed and agreed upon an ESI protocol, then you already know the “form or forms” (see FRCP 34) your production will take (e.g. native files, PDFs, TIFFs, etc.). However, you will be severely limited in which production formats you can generate without a proper ediscovery tool. Using an ediscovery platform to narrow down your production collection (e.g. all documents marked “relevant” but not “privileged”) gives you the industry-standard options for creating a production set that follows the agreed-upon parameters. 

You also want to ensure your clients’ data stays in the right hands after the production has been shared. Several ediscovery tools offer secure file sharing options to minimize the risk of unauthorized access to production sets. 

There are many more helpful best practices in the AAA “E-Discovery Considerations for Construction Arbitrations,” and we certainly encourage you to read through the guidelines to be better prepared for your next ediscovery challenge. Consider using an ediscovery vendor to assist you in accurately following these ediscovery considerations.

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Additional Resources: 

• eDiscovery Collections eGuide: The Definitive Guide to Managing Modern Data Collections

• Strategic Document Review eGuide: Your Complete Guide to Reviewing Electronic Evidence, Protecting Privilege & Winning Discovery

• Winning the Meet & Confer eGuide: How to Set Comprehensive Ground Rules for eDiscovery

Brett Burney is the VP of eDiscovery Consulting at Nextpoint Law Group and a widely recognized authority on the complex ediscovery issues facing litigators today. In addition to consulting with corporations and law firms on their data management and legal technology issues, Brett is a journalist, podcaster, speaker, and author. Brett can be reached at bburney@nextpointlawgroup.com.