Tuesday, May 14, 2024

Beyond the Numbers: Concrete is More than Compressive Strength

Concrete is commonly qualified by its compressive strength; it is frequently the primary figure of merit for engineers, architects, and inspectors alike. Since concrete’s mechanical properties are generally utilized in compression, this focus makes sense – at least for engineering design considerations. Yet, concrete performance and durability depend on far more than just compressive strength. From aggregate selection to mix design, placement methods to finishing techniques, there are a variety of concrete characteristics that can mean the difference between success and failure in concrete placements. Responsibility for failure can rest with the concrete supplier, general contractor, finisher, rebar supplier or even the engineer of record depending on the root cause(s) of the encountered problem(s).

Influence of Time on Compressive Strength

Concrete holds a unique place in the pantheon of materials science because it gets stronger with time since the hydration of the cement occurs gradually over an extended period. Typically, engineering specifications cite the compressive strength at 28 days or at shorter time intervals (1, 3, 7, 14 days) where early strength is particularly important. However, concrete can continue to strengthen to 56 days and beyond. The quality of delivered concrete is typically measured through the compressive testing of poured cylinders collected at the time of delivery, preserved, cured and tested at the specified time interval. And yet, compressive strength will only be maintained if the concrete has structural stability – making durability critically important to performance.

Common Causes for Concrete Degradation

Many concrete failures are not due to compressive crushing. Rather, cracking often occurs in response to externally applied tensile forces or localized tensile stresses from a variety of internal mechanisms.  Since a common rule of thumb is that the tensile strength of concrete is roughly 10% or less of the compressive strength, the sensitivity of concrete to the following degradation mechanisms can be understood.

Reactive Aggregate

If the aggregate used contains potentially reactive minerals, it can undergo a reaction with the alkali hydroxides in the pore solution that results in a volume expansion that generates tensile stress internal to the aggregate and surrounding paste causing localized stress cracking. This can lead to disintegration of the aggregate (Figure 1) and can lead to more widespread cracking allowing for water ingress and further deterioration. Terminology for these types of conditions includes Alkali Silica Reaction (ASR) and Alkali Carbonate Reaction (ACR). Deterioration of the bond between the aggregate and the cement paste also reduces the ability for the aggregate to effectively prevent crack propagation and destroys the composite nature of the material.  

Figure 1.  Petrographic micrographs of ASR induced microcracking extending into paste from reacted aggregate (left, middle), SEM image of ASR gel filling air voids (right)

Reinforcing Bond Loss


The installation of reinforcing structures like steel bars or cages are typically used in construction to reduce the possibility of tensile stresses developing in the concrete structure. In many circumstances, this reinforcing steel is tensioned either before or after concrete placement to keep as much of the structure as possible under compression, though this requires a good bond with the surrounding concrete. The quality of the paste/steel interface – established through mechanical load transfer by paste adhesion to the wire – determines its strength. Poor bond strength can result from an embossed steel grip pattern that is insufficiently or incorrectly rolled or from low paste strength caused by excessive water content (Figure 2). Corrosion of steel is also a path to bond loss and localized stress cracking given its expansive nature.

Figure 2. Rebar Corrosion (left), Reinforcing wire (top right), Wire Pattern (bottom right) (Source: corrosion.ksc.nasa.gov) 

Environmental Degradation

Concrete placements may appear monolithic or impenetrable, but concrete contains air voids into which water can migrate. Freeze thaw damage occurs when the water that migrates into the concrete freezes and causes cracking, paste disintegration and aggregate spallation (Figure 3). To avoid cracking, air voids can be intentionally incorporated using admixtures to accommodate the volumetric expansion associated with ice formation. The effectiveness of air entrainment can be determined by the combination of the total volume and the spacing of air voids, both of which can be measured as part of quality assurance.

Figure 3. Freeze Thaw Spallation (left), Rapid Air Void Analysis Using Blackout Preparation Method (right)

Improper Surface Finishing

Improper finishing techniques can also be problematic, with excessive water added to the mix during placement, overworking or prematurely working bleed water back into the concrete. This can result in increased paste porosity or trapping rising bleed water and air just beneath the concrete surface creating zones of weakness resulting in premature surface scaling and disintegration (Figure 4).

Figure 4. Surface scaling (left), Petrographic cross section showing surface weakness (middle), SEM image of cross section highlighting porosity at surface (right)

Petrography as the Solution

Petrography is a field within geology that involves the detailed description and classification of rocks and minerals and has been extended to concrete and concrete raw materials.  This analysis is used as an important diagnostic tool for identifying basic components within the concrete, assessing the quality of workmanship and adherence to mix design, and detecting any deterioration mechanisms present.  Petrographic analysis involves a variety of microscopic techniques, including reflected light, polarized light and scanning electron microscopy (SEM). Experienced petrographers can gather valuable information about common deterioration mechanisms in concrete, such as chemical attack, ASR, delayed ettringite formation (DEF) and damage caused by freezing and thawing cycles.  This detailed analysis also helps to determine the nature and extent of deterioration and predict whether it is likely to progress in the future. Importantly, construction professionals such as engineers and general contractors can use petrographic analysis to make informed decisions about effective replacement or rehabilitation strategies, making it an essential part of their overall assessment.  

Importance of Specifications

Engineering specifications and quality assurance procedures – from plant to delivery to placement – are essential tools in avoiding concrete problems and reducing the risk of performance and durability issues. Materials qualification testing and mix design evaluations are commonly required to demonstrate a supplier’s ability to meet specification requirements prior to delivery. On site quality testing captures information (slump, workability, density, poured cylinders) on the concrete as delivered. Some government contracts even include requirements for evaluation of as-placed concrete through the extraction of cores to certify the expected service life of the material as built.

When Things Don’t Go as Planned

If failure occurs, intense scrutiny of mixing parameters, placement procedures, materials quality, engineering design, and post placement operation and maintenance is sure to follow. Root cause determination will be informed by quality documentation and forensic field investigations. As built compressive strength is only one factor of this evaluation and may be difficult or impossible to accurately assess from cores removed from a damaged or deteriorated structure. Significant care should be taken when selecting and collecting specimens for evaluation with attention to both representativeness and appropriateness relative to the intended analyses. Petrography is a key component in evaluation of failure and/or degradation mechanisms but the interpretation can be limited by the provenance of the material being analyzed. Collaboration of experts in both structural engineering and materials science/petrography is often essential to reliably determine root cause of failure and assess questions of liability.

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Author Matthew Perricone, Ph.D.is a Principal Investigator and the Technical Consulting Group Manager at RJ Lee Group, Inc., where he directs and performs root cause failure analyses for multiple industrial sectors in support of product development, performance optimization, and manufacturing quality assurance. His projects also include addressing warranty, insurance and product liability claims.

Author Michael Baker serves as the Department Manager of the Concrete Materials Laboratory and has nearly a decade of experience in concrete petrographic studies at RJ Lee Group, Inc. In addition to managing the concrete materials laboratory operations, he directs and conducts petrographic evaluations, in combination with chemical and physical testing, to identify failure and distress mechanisms in concrete and cementitious materials.

Editor Thanh Do, Ph.D., PEis a Structural Forensic Engineer and Forensic Visualization Manager with Thornton Tomasetti, Inc. He specializes in investigations of construction/design defects and collapses, standard of care assessment, and visualization/storytelling for litigation.


Monday, May 6, 2024

Reconstructing the Francis Scott Key Bridge Utilizing the Progressive Design-Build Method

The Author, Lisa Love, admiring the view from the 
Governor Mario M. Cuomo Bridge in New York
Having awakened on the morning of March 26 to the devastating news of the collapse of Baltimore’s Francis Scott Key Bridge after being struck by the Dali, a 984 length /52 beam foot cargo container ship, I thought of the many times I crossed the bridge as a child growing up in Washington, D.C. I also recalled Montgomery Schyler’s comments on the opening of the Brooklyn Bridge, when he stated that “the work which is likely to be our most durable monument, and to convey some knowledge of us to the most remote posterity, is a work of bare utility; not a shrine, not a fortress, not a palace, but a bridge.”

I thought of the beauty of New York’s Mario Cuomo Bridge, a 3.1-mile cable-stayed twin-span bridge with eight traffic lanes, bicycle and pedestrian paths, six lookout points and room for future rapid transit. It was completed in 2018 and constructed under a design-build procurement model[i] at a cost of $3.98 billion. Accelerated bridge construction (ABC) techniques were utilized in its construction. ABC techniques employ innovative planning, design, materials, and construction methods in a safe and cost-effective manner to reduce the on-site construction time that occurs when building new bridges or replacing and rehabilitating existing ones. ABC techniques improve site constructability, total project delivery time, work-zone safety for the traveling public and traffic impacts, on-site construction time, and weather-related time delays.[ii]

I also thought of the gracefulness of Boston’s Leonard P. Zakim Bunker Hill Memorial Bridge, a 0.27-mile hybrid cable-stayed steel and concrete bridge with pedestrian and bicycle access that holds 10 lanes of traffic. The Zakim Bridge was completed in 2004 at a cost of approximately $100 million as part of the $24.3 billion Big Dig.[iii] Despite its elegant, streamlined appearance, the bridge was designed to be exceptionally strong, withstand winds over 400 miles per hour and endure a magnitude 7.9 earthquake.[iv]

My thoughts then turned to the collapsed Key Bridge and the potential delivery methods that would accelerate its reconstruction, as the bridge is vital to the economic well-being of the Baltimore region and the country.  I was reminded that out of tragedy can come beauty and innovation, and I know that a beautiful, durable, and useful rebuilt bridge combining the latest bridge technologies is not only possible but essential.

The Francis Scott Key Bridge Reconstruction

Opened in March 1977, the Francis Scott Key Bridge, a 1.6-mile steel-arched continuous-truss bridge, was the final link of the Baltimore Beltway Interstate 695, crossing over the Patapsco River and connecting Sparrows Point to the southernmost tip of Baltimore. It was a four-lane bridge with a vertical clearance of 185 feet. The downed bridge blocks access to the Port of Baltimore, one of the busiest American ports, handling 52 million tons of cargo that contributes $80 billion to U.S. trade. It is the busiest port in the country for cars and light trucks.[v] In addition, the 47-year-old Key Bridge carried more than 12.4 million commercial and passenger vehicles in 2023[vi] and made up approximately 8% of the toll revenue of the Maryland Transportation Authority (MDTA) in 2023, or approximately $57 million.[vii]

Promptly after the bridge’s collapse, Governor Wes Moore of Maryland declared a state of emergency and the U.S. Department of Transportation’s Federal Highway Administration (FHWA) approved the emergency relief application of the Maryland Department of Transportation (MDOT), making the event eligible for federal emergency relief funding. On March 28, the FHWA announced the immediate availability of $60 million in “quick release” emergency relief funds. These funds are available for debris removal, demolition, detours, emergency repairs and design, and reconstruction of the Key Bridge. The funds will also serve as a down payment toward initial bridge reconstruction costs. The FHWA stated that additional emergency relief program funding will be made available as reconstruction of the bridge continues.[viii]

Initial estimates of the cost to reconstruct the bridge were between $400 million and $1 billion and initial estimates of the time to complete were between 18 months and seven years, with the largest variable being the design.[ix] President Biden has committed to work with Congress to have the federal government pay for the entire cost of reconstructing the bridge.[x] In addition, legislation recently introduced in the U.S. Congress called the Baltimore Bridge Relief Act[xi] seeks to increase the 90% federal share typically payable for emergency bridge reconstruction to 100% of the total cost.[xii]

Progressive Design-Build Delivery Method

On April 25, only 30 days after the bridge’s collapse, the MDTA announced that it will reconstruct the Key Bridge utilizing the progressive design-build delivery (PDB) method.[xiii] The PDB method is a collaborative, multifaceted, phased and progressive process to establish the scope, schedule and cost of the project. PDB is an innovative alternative project delivery method and offers advantages of schedule compression and cost containment compared to traditional design-build delivery. Similar to traditional design-build delivery, PDB is an integrated contracting and delivery approach that provides the owner with design and construction services under one contract with a single source of project responsibility. Unlike a traditional design-build delivery, PDB commonly places the concept development work as a collaboration between the owner and the PDB team (contractor, architect, and engineer).[xiv]

The PDB delivery method is generally implemented in four phases. In the initial “selection phase,” the designer-builder is selected primarily based on qualifications and plans for managing the project and is retained early in the life of the project, in many cases before the design is developed. The intent is to prioritize the qualifications and experience of the design-build team over price. In the second phase, commonly known as the “validation phase,” the parameters of the project program, scope, schedule and budget are established, and existing conditions, potential issues with permitting, supply and other major project risks are evaluated to make decisions based upon the most accurate and reliable information available. In the third phase, commonly referred to as the “design and pre-construction phase,” the owner and design builder collaboratively develop the design based on cost, schedule, quality, operability, lifecycle and other considerations, and the design builder provides a formal proposal for the final design and construction phase.  Finally, in the fourth phase, commonly referred to as the “final design and construction phase,” the owner and design-builder agree upon the terms of the contract (including the project’s price, final scope and schedule) and the design-builder completes the design, constructs the project, tests, commissions and performs other agreed upon services.[xv]

The MDTA has demonstrated success in reconstructing bridges using the design-build method.  In October 2022, it opened the reconstructed Harry W. Nice Memorial Bridge, a 1.7-mile bridge with four traffic lanes, a center median, a bicycle path, access for wide-load vehicles and a 135-foot clearance to enable tall ships to pass beneath. Spanning the Potomac River from Newburg, Maryland to Dahlgren, Virginia, the Nice Bridge is located on U.S. Route 301, and was procured under the design-build method at a cost of $462.9 million. The project was delivered on budget and three months ahead of schedule. The MDTA retained Skanska-Corman-McLean Joint Venture and bridge design engineer AECOM to design and reconstruct the bridge. The Nice Bridge is very similar in appearance and structure to the collapsed Key Bridge.

On May 7, MDTA held a virtual industry forum to discuss its plans to rebuild the Key Bridge. MDTA indicated that it envisioned a cable-stayed replacement bridge but it would consider other options and that the alignment of the new bridge would be along the existing center line to minimize environmental impacts.  MDTA estimates that the replacement bridge will cost between $1.7 billion to $1.9 billion and funds will be derived from insurance proceeds, cash on hand, bond financing and federal funds. The PDB approach will involve a two-phase contract with a single-step RFP procurement to be awarded in July 2024 to the selected PDB team based upon qualifications and experience.  Phase 1 of the PDB will consist of preliminary design and professional services contracted at cost plus fee with a stipulated not to exceed (NTE) amount. Phase 2 will consist of final design and construction contracted at a guaranteed maximum price with the new bridge expected to be completed in Fall of 2028. RFPs will also be issued for a single selection general engineering consultant with an estimated NTE of $75 million and the selection of three construction management and inspection contractors with an estimated aggregate NTE of $60 million.[xvi]

Dispute Resolution Mechanisms, Including DRBs, in the PDB Delivery Method

In construction projects, disputes are almost inevitable due to the complexity and ambitious goals of many projects. Conflicts can arise from disagreements over contract terms, changes in scope, unforeseen conditions, delays, schedules, budgets, design specifications and other unexpected obstacles that can threaten the success of a project. Resolving these disputes efficiently is crucial to maintaining project momentum and avoiding costly delays and legal battles. In recent years, there has been a shift in the approach to dispute resolution in construction projects, with a focus on fostering collaboration rather than creating barriers.

One collaborative method for resolving disputes in construction is the use of dispute resolution boards (DRBs). A DRB is a board of impartial professionals formed at the beginning of a project to follow construction progress, encourage dispute avoidance and assist in the resolution of disputes for the duration of the project. DRBs are comprised of independent experts appointed at the outset of a project to proactively address potential disputes as they arise. DRBs provide impartial assessments of contentious issues and offer recommendations for resolution, thereby fostering transparency, accountability and early intervention.

The collaborative nature of a DRB is a perfect complement to the collaboration inherent in the PDB delivery method. Adopting effective dispute resolution mechanisms will be essential to mitigate risks and foster the collaboration essential to the PDB delivery method for the reconstruction of the Key Bridge. Employing DRBs with more traditional and common mechanisms of mediation and arbitration will enable stakeholders involved in the bridge’s reconstruction to identify common interests, explore creative solutions and reach mutually acceptable agreements without resorting to litigation, thereby maintaining the positive long-term relationships required to successfully reconstruct the Key Bridge.

Through the use of the PDB delivery method and embracing early dispute resolution practices, it is hoped that utility and design will intersect to create a durable, beautiful, esthetically pleasing replacement Key Bridge that will last into prosperity.

Lisa D. Love, Esq., FCIArb., is a mediator and arbitrator with JAMS, serving on its Global Engineering and Construction Panel, and a complex commercial transactions attorney who has worked on several bridge replacement projects and other infrastructure projects in the northeast United Sates.


[i] American Bridge Company, "Governor Mario M. Cuomo Bridge," American Bridge, (2024), https://www.americanbridge.net/featured-projects/governor-mario-m-cuomo-bridge/

[ii] Federal Highway Administration, "Accelerated Bridge Construction," FHWA, (2021) https://www.fhwa.dot.gov/bridge/abc/.

[iii]. Devon Denomme, Christopher Muscato, "The Zakim Bridge  Overview, Design & History," Study.com, (2023) https://study.com/learn/lesson/leonard-p-zakim-bridge-memorial-boston.html

[v] Lea Skene, "Governor: Salvors making progress in removing Key Bridge wreckage, vows to rebuild," WBALTV news, 19 Apr 2024, 3:38 p.m., https://www.wbaltv.com/article/key-bridge-collapse-salvage-governors-update-april-19-2024/60547125

[vi]  Id.

[vii] Maryland Transportation Authority, "Final MDTA FY 2024 Traffic and Revenue Forecast Update Report," MDTA, (2024), https://mdta.maryland.gov/sites/default/files/Final%20MDTA%20FY%202024%20Traffic%20and%20Revenue%20Forecast%20Update%20Report.pdf

[viii] U.S. Department of Transportation Federal Highway Administration, "Biden-Harris Administration Announces $60 Million in Emergency Work in Wake of Collapse of Francis Scott Key Bridge in Baltimore," DOT, (2024), https://highways.dot.gov/newsroom/biden-harris-administration-announces-60-million-emergency-work-wake-collapse-francis

[ix] Ben Finely and Brian White "Building a new Key Bridge could take years and cost at least $400 million, experts say," AP News, 29 March 2024, 12:10 a.m. https://apnews.com/article/baltimore-key-bridge-collapse-rebuilding-a126a3b732af95e86d1fbef01e9fb487

[x]  Rebecca Shabad, "Biden Says Wants Federal Government to Pay for Rebuilding Baltimore Bridge," NBC News, 26 Mar 2024, https://www.nbcnews.com/politics/white-house/biden-says-wants-federal-government-pay-rebuilding-baltimore-bridge-ca-rcna145138

[xi] Senator Benjamin L. Cardin, "Baltimore BRIDGE Relief Act," U.S. Senate, (2024), https://www.cardin.senate.gov/wp-content/uploads/2024/04/Baltimore-BRIDGE-Relief-Act.pdf

[xii] See 25 U.S.C. § 125

[xiii] Tamory Winfield, "MDTA Announces Virtual Industry Forum on May 7 for Rebuilding Key Bridge," MDTA, (2024), https://mdta.maryland.gov/index.php/blog-category/mdta-news-releases/mdta-announces-virtual-industry-forum-may-7-rebuilding-key-bridge

[xiv] American Council of Engineering Companies of New York, "Progressive Design-Build," ACEC New York, accessed 2024, https://acecny.org/page/progressive-design-build

[xv] Design-Build Institute of America, “Deeper Dive into Progressive Design-Build,” DBIA, (2024), https://www.keybridgerebuild.com/#design-build-resources

[xvi] Rebuilding The Key Bridge (2024). https://www.keybridgerebuild.com/

Tuesday, April 30, 2024

Toolbox Talk Series Recap: Preserving Evidence after Façade Failure

In the April 25, 2024, edition of Division 1's Toolbox Talk Series, David Schnerch, Senior Engineer and Building Science Specialist at RDH Building Science Inc., presented on preserving evidence after façade failure.

In the wake of a façade failure, preserving evidence is critical for understanding the root cause of an incident and determining liability. As covered by David's presentation, there are many ways to document conditions and preserve evidence, including:

1. Visual Documentation

According to David, visual documentation is often the primary means of documenting conditions. David highlighted three aspects of visual documentation he predominately sees in practice today: panoramic photography, computational photography, and construction cameras.

2. Spatial Documentation

David then discussed using Light Detection and Ranging ("LiDAR") and Photogrammetry to supplement visual documentation.

LiDAR is the process of capturing, mapping, and visualizing the 3D geometry of existing site infrastructure conditions.

Photogrammetry is a method of extracting 3D information from photographs. The process involves taking overlapping pictures of a structure and converting them into 2D or 3D digital models.

3. Vibration Data

According to David, vibration data is particularly needed in urban areas where facades are adjacent to new construction. Often, you can set up a seismograph before the construction activities begin and report the size and graph on a continuous basis. That way, you can monitor vibration levels during construction and verify whether the vibrations are occurring at or below a level that would be expected to cause damage.

4. Temperature and Humidity Analysis

In his practice today, David noted that they often use infrared cameras to determine the temperature of surfaces and infer moisture conditions below materials. He said infrared cameras can be particularly helpful in deciding where to make inspection openings in the façade.

5. Sample Collection

Lastly, David talked about how collecting samples is important for preserving evidence.  David acknowledged that although collecting samples can be costly and time-consuming, it is essential to collect enough to ensure you can say that you have a representative sample of the range of conditions on a structure.

In sum, there are various means for documenting conditions after a façade failure. David stressed the importance of not only thinking about why something occurred and who is responsible for it but also understanding other parties' hypotheses so you can obtain information to either prove or disprove those hypotheses.

Thank you to David for the valuable information and insight on preserving evidence after a façade failure.


Author Michael Filbin is an associate attorney with Cozen O’Connor in Boston, Massachusetts. Michael is a part of Cozen O’Connor’s Construction group and represents owners, developers, contractors, and subcontractors in construction-related disputes. Michael can be contacted at mfilbin@cozen.com.

Editor Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Douglas can be contacted at dmackin@cozen.com.

Tuesday, April 23, 2024

Meet the Forum's In-House Counsel: J. PAUL ALLEN

Company: Fischer Homes 

Law School: Chase College of Law at Northern Kentucky University (JD 1992)

States Where Company Operates/Does Business: Kentucky, Ohio, Indiana, Georgia, Missouri, Florida

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

A: I started at a large Cincinnati firm straight out of law school. I moved in-house for a client of the firm after about 8 years and have remained in-house ever since. The in-house experience has been rewarding and varied over the last 24 years. I have worked for a Fortune 500, publicly traded steel company, a private equity led construction products company, and, finally, a family-owned residential homebuilder. I had the good fortune to be General Counsel at the last 2 in-house companies and was able to establish a legal department from scratch at Fischer Homes. As time went on and I gained experience, I stayed in-house because of the ability to work for a single client and have a greater impact on the business side of things. 

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

A: For me, outside counsel serve as an extension of my legal department team. As I train new attorneys to work in-house, I focus on finding the "80% answer" quickly and accurately. Understanding the facts colleagues are sharing and the issues they raise helps you provide directionally accurate guidance at the speed of business. Sometimes that is good enough (e.g., "that makes sense, just make sure to be alert for A, B and C" or "deviating from our usual contracting process with this vendor creates risk we aren't ready to take"). In other cases, a deeper dive is needed. That is typically where outside counsel comes in. In my experience, the time and effort to get to an 80% answer is usually about the same as getting the last 20% buttoned up. Most in-house counsel have neither the bandwidth nor expertise to do this, so outside counsel is a key resource to employ. 

Q: What kind of work does your company do? Do you focus on specific sectors, states or regions? 

A: Fischer Homes is a top 30 residential homebuilder in the U.S. After starting in a garage in Northern Kentucky and eventually moving across the river into Cincinnati, Fischer Homes counterintuitively expanded during the Great Recession into Columbus, Indianapolis and then into Atlanta. After a brief lull, expansions into Louisville, Dayton, St. Louis and the Gulf Coast of Florida have occurred during my tenure. As I wind down towards retirement on May 1st, additional expansion opportunities are being evaluated. The responsibility of providing such a huge investment to our customers, and the "canvas on which their life will be painted" is not taken lightly. Whether the customer is a first-time homeowner, a step-up buyer, an empty-nester or anywhere in-between, the importance of the process cannot get lost in profit and loss statements. We recognize and embrace that responsibility with our founder's motto: "Promise only what you can deliver and deliver what you promise."   

Q: How can outside counsel best serve you and your company? 

A: The skills most highly valued in the outside counsel we repeatedly return to include: listening, responsiveness, and initiative. I try to begin each relationship with a new attorney by explaining that I want and need teammates I hire as outside counsel to question everything we do and ask whether it can be done more efficiently, accurately, quickly or cheaply. I want to leverage work outside counsel does to make my business better over the long haul. A classic example is via an After Action Report on concluded litigation. After a long, tough case, both the attorney and the client are usually happy to move on to other items. If both parties do so and don't perform a root cause analysis, you are certain to be back there again in short order. However, if the costs of that dispute or litigation can be amortized across the next 100 or 1,000 similar situations you can show value. Fact patterns that either don't turn into litigation or are at least much more manageable if they do, allow costs to be converted to investments in the future.  

Q: What advice would you give to outside counsel about how to meet or even exceed their client's expectations? 

A: Knowing when to refer a matter outside your own firm is a tricky skill for attorneys to learn. All too often I have been referred to an attorney in another department by the relationship attorney only to find out that person isn't the right fit, and the relationship attorney knew it when the referral was made. The desire to keep revenue and, if  applicable, billing credit within the firm is significant, but doing this can be shortsighted. Hopefully, as the relationship attorney, you have learned what will and won't work with a client. A longer lens allows the client to see that you put their needs first by making the right referral to an expert that handles the matter capably and efficiently. Instead of being concerned about lost revenue or the referral attorney poaching the client, be confident that you are providing the best services to a client that you intend to have a long term relationship with. For me, that has always cemented the relationship rather than threatening it. 

Q: What experience do you have using a third-party neutral to mediate construction disputes? 

A: Construction disputes tend to be good candidates for early neutral mediation because of the complexity and amounts involved. Selecting a neutral that will understand the technical aspects of the case, while still being strong enough to communicate to both parties the downside of continuing down the adversarial path, can be difficult. Reliance on feedback from other construction professionals, typically within the ABA Forum, has always been a practice of mine. It has worked out repeatedly over the years. That said, make sure the other side is committed to both the mediation process and the timing of the process before you get started. Without that, you can sometimes feel like you are "pushing rope."

Q: What do you plan on doing after retiring? 

A: The non-serious answer, after 32 years of practicing law, the last 24 in-house, is nothing! Of course, I want to stay active, particularly with the Forum, for both professional and psychosocial reasons. One of the great things about the practice of law is that "retirement" can be planned as more of a dimmer switch on a light rather than an on/off switch. I have formed an LLC and plan to do some very occasional work for former employers at first. Beyond that, I am exploring the fractional law space with an emphasis on temporary or part-time general counsel work and construction mediation/arbitration as well. For the most part, I am just "retiring" from going to the office every day. 


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. 

Monday, April 15, 2024

Top 10 Take-Aways from the 2024 Annual Forum Meeting in New Orleans

Over 600 construction lawyers, experts, and consultants met in New Orleans last week for the Forum’s 2024 Annual Meeting where Program Coordinators Brenda Radmacher and Joseph Imperiale together with John Cook and Buck Beltzer put together an insightful program focused on all things construction litigation. Here are our 10 top take-aways from this unique program. 

10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators.


Live band music outside the renowned Orpheum Theater
9. Don’t pay the troll. Though more prevalent in other areas of the law, the construction industry is not immune from litigation trolls who file boilerplate complaints seeking a quick settlement. Kimberly Hurtado noted that filing a Rule 12(e) motion for more definite statement (or a bill of particulars) can provide a defending attorney an opportunity to disabuse a serial filer's expectation of obtaining a big pay-day with minimum effort or even have the potential to resolve the case entirely. For cases arising in jurisdictions outside the defendant’s home state, motions to dismiss for lack of personal jurisdiction, may also be the (International) Shoe that fits. Counsel should (of course) confer with their clients to measure the pros and cons of potentially costly motion practice against the potential for a low-cost settlement.

8. Insurance policies should be like a drum line. A construction project requires multiple insurance policies to cover the wide variety of risks that can occur during a construction project. It is essential that construction lawyers negotiating construction contracts understand what risks must be covered and to avoid coverage gaps and inconsistencies. When insurance coverages are coordinated and in harmony with each other, risks are adequately covered and there is music. When insurance coverage are not harmonized, there is dissonance, or worse, silence. Insurance coverages that are out of sync can result in costly coverage battles and potential uninsured exposure.

7. Don't lose the forest for the trees (or the leaves). This was one of many tips conveyed by Jack Rice, a nationally recognized and award winning criminal defense lawyer. The importance of focusing on the big picture when presenting any case at trial and avoiding information overload was a common theme throughout several of the plenaries as well as the practicum. It is easy to become hyper-focused on the nuances of the Project or the dispute but focusing too much on the weeds can lose the judge or jury. We cannot underestimate the power of a strong theme.


No trip to NOLA would be complete without beignets...
6. Know your audience and how to present to them. Construction disputes can be presented to judge, jury, or arbitrator. Each type of trier of fact has its advantages and practicalities to consider when preparing the case. If the trier of fact is not familiar with construction cases, it is crucial for lawyers and experts not only to speak plainly, but to also develop a narrative the fact finder can follow. While juries may not understand construction drawings, they will understand a story that illustrates that the owner and contractor agreed a vapor barrier must be installed, no vapor barrier was installed, and as a result, the building experienced moisture infiltration and damage to interior walls. 

5. Don't be afraid to take a construction case to a jury trial. Construction attorneys are famously reticent to take cases to trial before a jury and, when permitted the option, will include a jury waiver in the contracts they draft. The desire to avoid a jury trial is based on the concern that jurors cannot be made to understand (or care) about the technical issues involved in the disputes that we litigate. As it turns out, that concern might be misplaced. Panelists Jason Rodger-da Cruz, Allen Miller, and Rick Fuentes opined that even the most complex case can be made easy to understand with proper theme development. The panelists also discussed the results they have seen in numerous mock trials before both simulated jury pools and simulated judges. While the mock judges tended to "split the baby," the mock jurors were more inclined to award full judgments where justified and demonstrated a strong desire to "get it right." If you do decide to take a case to a jury trial, be sure you get off on the right foot… according to these panelists, more than 50% of jurors make up their mind during opening statements.


4. A picture is worth a thousand words. Another common theme across many of the sessions was the need to have a good demonstratives to accompany your presentation of evidence at trial. The pressure to develop visual demonstratives is higher than ever and will only continue to grow. That said, Megan O'Leary demonstrated that it is easier than ever to create effective trial graphics. PowerPoint has all the tools needed to put together a professional looking presentation that, not all that long ago, would have needed to be outsourced to a vendor at significant cost to the client.

 

3. Check with your client’s IT team before agreeing to ESI protocols. Discovery protocols can easily reduce the burden of discovery in document-heavy cases. However, attorneys need to confer with their clients to ensure they do not agree to something that proves difficult or time-consuming to do. Documents stored in a database frequently contain links to other documents elsewhere in the same or another database. For example, an email may contain a link to a draft change order; producing one document (the email) will not produce the other, linked document (the draft change order). If a party agrees to an ESI protocol requiring production of linked documents but does not have a way to automatically produce linked documents, parties may manually have to locate and produce the linked and non-produced document.

Forum friends at the Friday afternoon crawfish boil

 

2. It's important to track your damages early and often. Although proving entitlement is the first hurdle a litigant must clear, proving damages is equally vital. Michael Subak (Troutman), Andrea Gross (Bechtel), and Patrick McGeehin (FTI Consulting) discussed the importance of tracking damages as they are sustained. Not only will it help during the negotiations for a change order or equitable adjustment, should the dispute evolve into litigation or arbitration, the party will have a head start on preparing a summary of damages based on data collected closer in time to the events giving rise to the dispute. It is more difficult, and conversely, more expensive to evaluate damages months or years after the claim arises.

 

1. Attorneys and consultants who invest in the Forum will get back more than they give. During the annual awards ceremony, the Forum honored Andy Ness of JAMS with the Cornerstone Award in recognition for his long-term service to the construction industry, the public, and the legal profession. As much as the Cornerstone Award is intended to honor those who give back to the Forum over the course of a career, Andy remarked that his contributions to the Forum were far eclipsed by the value the organization has, in turn, provided to him over the years. Whether through lessons in leadership to connections within the industry the Forum offers its members countless benefits. Andy is right in observing that the more you give to this valuable organization, the more you will get back in return.


Co-Authors Marissa L. Downs and Brendan Witry are construction attorneys at Laurie & Brennan, LLP where they represent owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. They can be contacted at mdowns@lauriebrennan.com and bwitry@lauriebrennan.com.