Toolbox Talk Series: GenAI Document Review

This month's installment of the Toolbox Talk Series explored the use of Generative AI in document review, which as construction lawyers know can be voluminous. Jack Bandlow and Travis Olson from BRG provided an overview of how lawyers can use GenAI to make document review in construction litigation more efficient. 

Like other uses of GenAI, it is a tool that is not designed to replace lawyers. Rather it helps eliminate or reduce mundane or tedious tasks that are not the highest and best use of a lawyer's time. The AI-powered document review platforms are designed to recognize patterns in documents and transforms words and text into "vectors" to group concepts with similar meanings. For example, whereas a traditional keyword search for "weather delay" will only return hits on that keyword, a search utilizing vectoring will also search for conceptually similar terms, even if the keyword does not match. These tools can use natural language searches to return results that a responsive to the prompt. 

Jack and Travis also discussed the use and creation of prompts to obtain results from AI tools. For example, the prompt can instruct the AI prepare a response in a particular tone and scenario. Additionally, bad prompts yield bad results. A good, well-thought and structured prompt will provide a much better response. 

Finally, Jack and Travis discussed using AI agents to automate tasks and how to ensure that client data remains secure and to control file permissions to data. 

Thanks to Jack and Travis for an insightful presentation. 

Consultant Corner: The Hardest Case to Prove: Causation in Cumulative Impact Claims

Introduction

Cumulative impact claims are among the most challenging disputes in construction law. Often called the “silent killer” of project productivity, these claims allege that the combined effect of numerous changes, not any single one, causes significant inefficiencies, disruption, and cost growth.

While contractors may have little trouble showing that productivity declined or costs escalated, the real difficulty lies in proving causation. Dispute resolution forums require more than an assertion of widespread disruption; they demand a disciplined demonstration that the inefficiencies were caused by the accumulation of changes, were unforeseeable, and were not attributable to other factors such as poor management, labor shortages, or weather.

From a practitioner’s perspective, this article examines the unique challenge of causation in cumulative impact claims and provides insights into the analytical approaches attorneys and experts can leverage when these disputes arise in arbitration, mediation, or litigation.

What Makes a Cumulative Impact Claim Distinct

Unlike discrete claims tied to specific events, cumulative impact claims argue that individually manageable changes, when combined over time, erode productivity in ways no single change order captures. The argument is that frequent owner-directed modifications, design clarifications, and scope adjustments collectively fragment workflow, cause rework, stack trades, and disrupt sequencing.

These claims are most often seen on large or complex projects where constant change becomes the norm. Yet the very nature of these claims, which focus on systemic disruption rather than isolated events, make them difficult to prove.

The Burden of Causation

To succeed in a cumulative impact claim, a contractor must meet three key burdens:[1]

1. Establish a causal link between the accumulation of changes and the alleged disruption.
2. Show that the impact was unforeseeable at the time of contracting or when changes were accepted.
3. Demonstrate that the disruption was not caused by other factors, including the contractor’s own shortcomings.

Each of these burdens presents its own challenges.

Establishing the Causal Link

Courts and arbitral panels expect more than evidence of a high volume of change orders. The claimant must demonstrate how the timing, frequency, and interaction of changes disrupted workflow and reduced productivity. Simply pointing to the number of changes is not enough.

The most effective claims weave together contemporaneous records, project schedules, and productivity data to tell a compelling story of cause and effect. Without this, even a project riddled with disruption may fail to meet the evidentiary standard.

Demonstrating the Impacts Were Unforeseeable

Most contracts allocate risk for changes and disruptions to some extent. To establish entitlement, the contractor must show that the cumulative impact went beyond what the parties reasonably contemplated. If disruption is viewed as an expected byproduct of the contract or if the contractor failed to raise concerns in real time, the claim often collapses.

For attorneys and other dispute resolution professionals, the key question becomes whether the alleged cumulative effect was an unexpected consequence of the changes, or simply a foreseeable outcome the contractor should have anticipated.

Isolating Cumulative Impact from Other Causes

Even when disruption is proven, it must be distinguished from other contributing factors. Poor planning, resource shortages, labor disputes, weather events, or concurrent delays can all blur causation. Adjudicators are especially wary of claims that appear to mask contractor inefficiencies under the guise of cumulative impact.

Strong claims directly address and separate out these other factors, demonstrating that while multiple causes may exist, the cumulative effect of owner-directed changes was a substantial driver of productivity loss.

Analytical Approaches for Demonstrating Causation

Attorneys representing contractors or owners in these disputes must rely on expert analysis. Several methodologies are commonly used, each with strengths and limitations.

System Dynamics Modeling

System dynamics is becoming one of the most comprehensive approaches for cumulative impact claims. It simulates how projects evolve over time based on interactions such as workforce efficiency, rework cycles, frequency of changes, and schedule compression.

Unlike traditional methods, system dynamics captures the cause-and-effect feedback loops, time delays, and nonlinear behavior that characterize cumulative disruption. Forensically, it allows an expert to demonstrate not just that productivity loss occurred, but how and why it occurred across the life of the project.

For attorneys, this provides a transparent and compelling narrative, one that helps decision-makers understand the mechanisms of cumulative impact in a way that simple cost comparisons cannot.

Measured Mile and Modified Measured Mile

The measured mile method compares productivity in an “unimpacted” portion of the project to a disrupted portion. Where no fully undisturbed period exists, a modified measured mile may be used.

These methods are widely accepted but have significant limitations in cumulative impact disputes:

• On heavily disrupted projects, no truly unaffected period may exist.
• Overlapping disruptions make it difficult to isolate impacts.
• External events such as weather or supply chain delays can confound results.

While useful as part of a broader evidentiary framework, measured mile analyses rarely succeed on their own in proving entitlement to cumulative impact claims.

Total Cost and Modified Total Cost Approaches

In some cases, contractors present claims by comparing actual costs to the original estimate, attributing the difference to disruption. These “total cost” approaches are generally disfavored in dispute resolution. They are often seen as blunt instruments that attempt to shift all overruns to the owner without isolating causes.

Such claims typically succeed only when no other method is feasible and when the contractor can show that its estimate and actual costs were reasonable and that it bore no responsibility for the overruns. In practice, this is a high bar that few claims can meet.

Case Study: J.A. Jones Construction Co. – Limits of Measured Mile in Pervasively Disrupted Projects

Source: Appeal of J.A. Jones Construction Co., ENGBCA No. 5528 (1995)

This case is directly relevant to the central themes of this article, particularly the difficulty of proving causation, the challenge of identifying truly “unimpacted” work, and the limitations of relying on single-method analyses such as measured mile. J.A. Jones illustrates the precise evidentiary hurdles that arise when cumulative disruption affects every phase of a project, making traditional analytical techniques insufficient on their own.

Summary of the Dispute

The contractor was engaged in constructing a federal courthouse that experienced continuous design revisions, late approvals, and owner-driven scope adjustments. Although each individual change appeared modest, their frequency and overlap disrupted sequencing, increased trade interference, and eroded workflow stability. J.A. Jones sought recovery for cumulative impact, arguing that the aggregation of owner-directed modifications caused substantial productivity loss.

To demonstrate inefficiency, the contractor attempted a measured-mile analysis. However, the Board found that the project had no period of unimpacted performance, which rendered the measured-mile results non-applicable. Because disruption permeated all phases of the work, there was no valid baseline against which to measure labor productivity. The Board therefore rejected the measured-mile approach, not because cumulative impact did not exist, but because the analytic method was unsuited to the circumstances.

Rather than dismiss the claim outright, the Board examined contemporaneous project documentation, including daily reports, manpower records, evidence of resequencing, and patterns of workflow fragmentation. These materials helped establish that owner-directed changes materially contributed to productivity degradation, while also allowing the Board to separate owner-caused disruption from contractor-driven inefficiencies.

Relevance to Causation and Expert Analysis

J.A. Jones demonstrates that even when every available productivity comparison is distorted by widespread disruption, cumulative impact may still be recoverable if the claimant provides a clear, evidence-based causation narrative. The case underscores that:

• measured mile is not universally applicable;
• causation must be supported by multiple forms of evidence; and
• contemporaneous project documentation often becomes the most persuasive tool.

This case reinforces the need to build cumulative impact claims around mechanisms of disruption, not simply numerical comparisons.

Why This Matters for Attorneys in Dispute Resolution

For those litigating or arbitrating cumulative impact claims, the challenge is not proving that disruption occurred—most large projects experience it. The challenge is proving causal entitlement: that the disruption was caused by cumulative changes, was unforeseeable, and was not caused by the contractor.

Attorneys must therefore focus their strategy on evidence that ties productivity losses directly to the aggregation of changes. This often requires:

• Contemporaneous documentation such as daily reports, meeting minutes, and correspondence.
• Forensic schedule and productivity analysis performed by qualified experts.
• A clear narrative that distinguishes cumulative disruption from other project challenges.

The most effective cases combine these elements into a story that is accessible to arbitrators, judges, and mediators, many of whom may not have technical construction backgrounds.

Practical Takeaways

• Document early and often. Contractors who fail to flag concerns about cumulative disruption during execution often undermine their own claims later.
• Build causation step by step. Strong claims link specific clusters of changes to measurable impacts, supported by contemporaneous records.
• Beware of overreliance on formulas. No single method, including measured mile, total cost, or otherwise, will suffice in isolation. Use multiple approaches to triangulate the truth.
• Anticipate skepticism. Dispute resolution forums are wary of cumulative impact claims, viewing them as attempts to shift unanticipated costs. Expect to face rigorous scrutiny on causation.

Conclusion

Cumulative impact claims represent one of the most difficult frontiers in construction disputes. They ask courts, arbitrators, and mediators to look beyond individual changes and recognize a systemic effect that is hard to quantify. Success hinges on causation: proving that inefficiencies were caused by the accumulation of changes, that they were unforeseeable, and that they were not the contractor’s own doing.

For attorneys, the implication is clear: these cases require careful strategy, strong documentation, and expert analysis that can withstand cross-examination. Without that foundation, even genuine disruption may fail to result in recovery.

[1] AACE International’s Recommended Practice RP 130R-23, Demonstrating Entitlement to Cumulative Impact Claims in Construction, provides additional detail in this area from a practitioner’s perspective.

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Author Stephen P. Warhoe, PhD, PE, CCP, CFCC, FAACE, is a Senior Director at Arcadis and an expert in delay, disruption, and productivity loss on complex projects. He has nearly four decades in the construction field, is a university professor in construction management, and has testified extensively as an expert witness in construction disputes.

Editor Thanh Do, PhD, PE, is a Director at BRG's Global Construction Practice. He specializes in root cause investigations of structural failures, standard of care evaluations, construction and design defect analysis, Design-Build delivery, early dispute resolution, and trial visualization. 

Contracting Chaos? How Mid-America v. US Department of Transportation is Upending DBE Certifications

Since the early 1980s, Disadvantaged Business Enterprise (DBE) programs including the one implemented by the US Department of Transportation (DOT) have been in effect. The DBE program began under Title VI of the Civil Rights Act and has been reauthorized by Congress in various bills over the years. Generally, these DBE programs have required that ten percent of federal highway construction funds be paid to small businesses controlled and owned by “socially and economically disadvantaged individuals.” Certain minority and women owned businesses have been given a presumption of disadvantage to facilitate their participation in federally‑assisted DOT contracting. While any person may qualify as socially and economically disadvantaged regardless of their race or gender, certain racial groups and women are rebuttably presumed to be disadvantaged. All other applicants seeking DBE status who are not presumed disadvantaged on the basis of their racial or female status must prove, by a preponderance of the evidence, that they are socially and economically disadvantaged.

Many states have enacted similar requirements governing state and local projects. Recently, the presumption of disadvantaged status has come under attack in Mid‑America Milling Company v. U.S. Department of Transportation[i] pending in the U.S. District Court for the Eastern District of Kentucky. The results of Mid-America represents a drastic change to the DOT’s DBE program for federal DOT contracting. 

Any contractors bidding and working on DOT and other federal and certain state projects are familiar with DBE programs and take them into account while bidding projects with DBE goals. Some have even lost contract awards to DBE firms due to not receiving the presumption of DBE status. While the long-term implications of Mid-America are not clear, it will impact DBE status and how certain federal projects are awarded.

The Mid-America case began in October 2023 when plaintiffs, Mid-America Milling, LLC and Bagshaw Trucking Inc. (Plaintiffs), who both regularly bid on DOT funded contracts impacted by DBE goals filed suit against the DOT seeking a preliminary and permanent injunction and a declaratory judgment seeking to end the DBE program. Plaintiffs claimed that the DBE program violated the equal protections afforded under the Fifth Amendment of the United States Constitution. Neither plaintiff had a presumption of disadvantage status and had lost out on federally funded contracts to DBE firms even when their bids were lower. The Plaintiffs argued that the DBE program discriminated against them.

The Court found that the DOT’s DBE program had carved out preferences for only some minority groups (race and gender), it was not tied to any foreseeable conclusion, and it failed to be narrowly tailored. For these reasons, the Court held that the Government had failed to justify its discriminatory policies and the Plaintiffs would likely prevail on the merits of their constitutional claims. Ultimately, the Court found that Plaintiffs were entitled to a preliminary injunction. Plaintiffs requested that the DOT be enjoined from implementing the DBE’s race and gender presumptions nationwide.  However, the Court denied such broad request for relief and limited the injunction to the Plaintiffs and later clarified the injunction as being applicable to any DOT contracts impacted by DBE goals upon which Plaintiffs bid in any state in which Plaintiffs bid on such contracts.[ii] In essence, the Court held that race and gender classifications and the presumption of disadvantaged status violate the Constitution’s guarantee of equal protection.[iii]

In 2025, the Government had changed its position and began to agree with Plaintiffs. The Government and Plaintiffs then submitted a Joint Motion for Entry of a Consent Order asking the Court to enter an order finding that the use of DBE goals in a jurisdiction where any DBE in that jurisdiction was determined eligible based on race or sex-based presumption violates the equal protection component of the Due Process Clause of the Fifth Amendment.[iv]  There has been no ruling on this Joint Motion as briefing on this issue is still ongoing.

In response to the rulings in the Mid-America case, the DOT issued a proposed Interim Final Rule (IFR) effective October 3, 2025, to ensure that the DOT operates its DBE program in a “nondiscriminatory fashion” and in line with the Constitution.[v] The IFR eliminates the presumption that a business is “disadvantaged” solely because of the owner’s race or gender. Similar changes are reflected in 49 CFR §26.67. DBE participation requirements are also temporarily suspended and payments will not count towards DBE participation goals until the recertification process is completed. Some states have followed the IFR by suspending DBE goals on various projects, including Missouri, Virginia, and California until recertification of DBE contractors based on the new standards is completed.

With respect to DBE certifications under the prior rules, the IFR immediately suspends existing DBE certifications and requires previously certified DBE firms to submit new applications proving that they are eligible for certification under the IFR. The IFR requires each Unified Certification Program (UCP) to re-evaluate any currently certified DBE, recertify any DBE under the new certification standards, and to decertify any prior DBE that does not meet the new certification standards.[vi]

Under the IFR, to achieve certification, all applicants (new and previously certified applicants) must demonstrate by a preponderance of the evidence a social and economic disadvantage based on their own experiences and circumstances within American Society.[vii] Specifically, the IFR provides the following guidelines for an applicant seeking DBE certification:

(1) to satisfy the social and economic disadvantage requirement and ensure such determination is not based in whole or in part on race or sex, an applicant must provide a personnel narrative that establishes the existence of disadvantage by a preponderance of the evidence based on individualized proof regarding specific instances of economic hardship, systemic barriers, and denied opportunities that impeded the applicant’s progress or success in education, employment, or business,

(2) the personal narrative must state how and to what extent the impediments caused the owner economic harm, and must establish that the owner is economically disadvantaged relative to similarly situated non-disadvantaged individuals and 

(3) the applicant must attach to the personal narrative a current personal net worth statement and any other financial information he considers relevant. To succeed in the recertification process, applicants must collect and submit the required financial documentation and ensure that their personal narrative clearly outlines the specific barriers that they have faced that justify DBE status. Remember the IFR is new to all parties involved including contractors and the various certifying agencies and it is key to maintain an open line of communication.

While the IFR did not provide detailed information on how UCPs should reevaluate existing DBEs, it is presumed that UCPs will follow current standards applicable for firms that were not presumed to be disadvantaged. Currently, there is no specific deadline by which a UCP must complete its reevaluation process. In fact, 49 CFR § 26.111 simply states that a UCP must reevaluate each currently certified CBE firm “as quickly as practicable.” 

There is still a great deal of uncertainty about how the new standards in the IFR will impact DBE programs at both the federal and state levels. For Unified Certification Programs (UCPs), the required reevaluation process is entirely new, and they must interpret and apply these revised rules without delay. As a result, many UCPs are facing challenges in understanding how to administer their reevaluation responsibilities in order to avoid inconsistency and compliance issues.  Ultimately, some currently certified DBE firms may not meet the new standards.  As a result, they may be unable to participate in certain projects so that the pool of eligible DBE firms may decrease leading to a decline in DBE participation rates. 

There is no doubt that the Mid-America case and related IFR will cause disruption to contractors on certain DOT and federally funded projects, but in the long run, there could be more opportunities as the DBE participation goals will likely drop. But keep in mind that the Mid-America case will be appealed and the ultimate outcome could change.  In the interim, contractors wanting to maintain or achieve DBE status for various DOT projects should start the process of seeking certification or recertification based on the new standards established by the IFR.

AI as Co-Counsel: How Litigators Can Leverage AI for Depositions, Experts, and Trial Preparation

Artificial intelligence is everywhere right now, and the legal industry is no exception. It’s a regular feature at CLEs and in client discussions because lawyers are discovering that careful use can save both time and money. But AI is no longer reserved for e-discovery vendors. Litigators are using AI for trial preparation—helping identify themes, test case theories, summarize voluminous records, refine expert testimony, and streamline depositions.

While AI is not able to read a witness, gauge credibility, or build trust with a jury like lawyers, it can make preparation more efficient and thorough and help present information in a more digestible and compelling way. Below are practical ways litigators can weave AI into their everyday litigation practice and not get left behind.

Sharper Research, Stronger Cases

Building a strong case starts with a solid grasp of the legal concepts, which often means thorough legal research at the outset. We have all heard cautionary tales of lawyers submitting AI-drafted motions to the court that cite hallucinated (fabricated) cases for propositions of law that don’t exist. But if used properly, AI can enhance—not replace—traditional research methods.

AI can help you come up with better search terms to get to the cases you need. Start by defining the issue and breaking it into core components like the cause of action or doctrine you want to research, key contract language or clause types, procedural posture, remedy sought, and any industry‑specific terminology. Then ask AI to generate jurisdiction‑specific term variants and draft Boolean strings designed to target cases addressing your issue. Ask it to include or exclude terms that commonly create false positives, suggest how courts in your venue typically frame the concept, and flag time filters tied to rule/law changes that may impact your results. You can incorporate key fact patterns you think are material to the case’s holding and ask for search terms to help identify similar fact patterns in the results. As you review your initial search results, prompt AI to refine the terms and strategy.

Once you have identified the key cases, AI can quickly and efficiently summarize holdings, extract controlling standards, and highlight fact patterns most analogous to your case. AI can also help you distinguish cases cited by your opponent to use in response to motions or at hearings. But remember, treat the AI outputs as starting points: you should always verify the law, read the full opinion, and Shepardize or KeyCite before relying on or citing them for any proposition.

Crafting Case Themes That Stick

Once you have a solid legal foundation, you need a compelling narrative that resonates with a factfinder or judge. Every litigator knows that the most successful themes do more than summarize facts or legal issues—they evoke fairness, credibility, and common sense. AI can be a surprisingly effective sounding board for developing and refining your trial theme to one that sticks.

Start by giving AI a high-level overview of your case: the core claims and defenses (or include the pleadings), the key documents or facts, and your preliminary theory of the case. Then ask it to propose case themes from the perspective of your client, the opposing party, and even a neutral observer. By shifting perspectives, AI can help reveal which themes naturally align with the evidence and which sound forced or inconsistent. By anticipating the opposing party’s themes, you can create a strategy and develop evidence to counter that narrative.

Once you have several potential themes that support your case, use AI to suggest variations on the themes, test and strengthen them. For example:

• Support the theme with evidence: Ask AI to identify which documents, witnesses, or facts from your case best support each theme. If your message is that “the delay resulted from the general contractor’s failure to coordinate trades,” AI can flag the communications, reports, or schedules that most effectively illustrate that idea.
• Play devil’s advocate: Ask how opposing counsel might frame the same facts or what emotional counter-narrative a jury might find more compelling. The exercise helps you anticipate and inoculate against those attacks at hearings, in depositions, and ultimately, at trial.
• Sharpen your messaging: AI excels at distilling complex ideas into concise, impactful phrasing. You can prompt it to make your theme more memorable, approachable, or emotionally resonant. For example, I recently used AI to help weave a trial theme into an opening statement I drafted, and it suggested some memorable one-liners to include throughout that reiterated the theme and drove home the points I wanted the factfinders to remember.

Litigators should always treat AI outputs as brainstorming sessions. Critically analyze the results and decide which theme feels authentic to you and your client and aligns with the facts, tone, and posture of the case.

Depositions and Expert Reports with Fewer Blind Spots

Deposition preparation is one of the easiest ways to incorporate AI into your litigation practice. Lawyers can shave hours off their preparation by using AI tools to isolate a single issue or topic from voluminous discovery documents, summarize prior depositions, and create charts on key issues. AI can generate a timeline of key events or summarize a lengthy document for you to easily reference throughout a deposition or in witness preparation. For example, within seconds, it can extract and create a chart of all contract provisions on specific topics like change order requests or scheduling requirement; it can also breakdown each witness/party’s position on an issue like who they claim is responsible for the defective condition.

You can also use AI to prepare your fact or expert witnesses for their testimony. Ask AI to analyze prior deposition transcripts or reports and flag inconsistencies or vulnerabilities. Most of the outputs will be ones you’ve already identified and prepared for, but it will likely generate a few ideas you had not previously considered. Prep your client for how to handle those issues. AI can even create a mock cross-examination and generate questions in a variety of tones. This can be used by your colleagues to conduct a mock cross examination of your client. 

Construction cases usually involve technical or data-heavy expert testimony. AI is an issue-spotting tool that you can use both offensively and defensively for expert reports and depositions. For example, before finalizing your expert’s report, ask AI to identify any analytical gaps or flag any inconsistencies within the report and challenge the conclusions from the opposing parties’ perspective. You can then address any shortcomings before finalizing the report—and before a Daubert challenge. AI also cuts down on the time it takes to synthesize CVs, expert publications and sources, prior Daubert rulings, and court opinions in order to identify impeachment angles. While AI cannot replace the expert (or lawyer’s) judgment, it accelerates the review process, helps lawyers ask sharper, more informed questions, and eliminates the element of surprise for your witnesses.

Ethics and Guardrails

As with any litigation tool, traditional ethical rules still apply. AI’s efficiency is no substitute for professional judgment, supervision, or confidentiality. Lawyers should never upload client materials to public systems and should only use secure, firm and client approved AI platforms to protect privileged and confidential data. And as mentioned above, you should always verify the results. AI can misinterpret nuances that lawyers know matter—words like “delay,” “impact,” or “notice” may carry specific legal significance that AI does not pick up on. Treat AI as a non-lawyer assistant that requires attorney oversight. Use it to expand your creativity, see the case from various perspectives, and make your advocacy more persuasive.

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Debrán O’Neil is a litigation partner in Carrington, Coleman, Sloman & Blumenthal, L.L.P.’s construction practice group in Dallas, Texas. She primarily represents manufacturers and public and private owners and developers in connection with the construction of large commercial and infrastructure projects throughout Texas. She can be reached at doneil@ccsb.com.