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.

---

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.

---

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.

Toolbox Talk Series: Understanding Procore and Other Common Construction Applications

After a summer break, the Division 1 Toolbox Talk Program returned for an insightful presentation from Rawle Sawh of Gilbane Construction Co. and Andy Kunkle of ADJ Studios about project management software used in construction. Construction projects of all sizes and varieties rely in some part on project management platforms like Procore to track the project's progress. While this software is robust and typically offers a variety of tools and datapoint, it does not track everything - leading to "data silos." 

As a result, modern complex construction projects will rely on a variety of different tools both on the job site and far removed. The project management software is used to track schedules and RFIs whereas back-office enterprise resource planning databases will power companies' financial systems. 

Large Language Models (LLMs) such as ChatGPT, have also found their way into several aspects of life and work, including the construction industry and legal practice. Our presenters discussed how LLMs can "talk" across platforms and connect copious amounts of information across platforms quickly and in actionable ways. A supervisor or foreman can access project data from their smartphone instantaneously which only a few years ago would have necessitated a trip to the job trailer. 

With new technology comes growing pains and novel legal issues. The presenters discussed how attorneys both internal and external need to know what capabilities exist and what data can be retrieved before agreeing to e-discovery protocols. Knowing what data is available and where it is stored in advance can help minimize headaches for counsel and client alike. 

Thank you to Rawle and Andy for a timely and insightful presentation. 

---

Author and Editor Brendan J. Witry is an Associate at Laurie & Brennan LLP. His practice focuses exclusively on representing and advising owners, contractors, and trade contractors in construction disputes at all stages.

Environmental Due Diligence - What's The Hold Up?

Construction projects do not occur overnight. Regardless of project size, projects take anywhere from months to years to design, build, and complete. Perhaps one portion of the construction project that is always subject to criticism, particularly on large infrastructure projects, is environmental review and the applicability of environmental laws, requiring specific environmental thresholds, and the National Environmental Policy Act (“NEPA”). Contractors are well aware of the timeline and potential impacts that NEPA review might have on a project, and many contractors and national groups have expressed a desire to ensure that NEPA does not interfere with or altogether block the deployment of large infrastructure projects.

On federal funded or assisted projects, contractors must comply with strict environmental oversight because the project is tied to federal funding or federal agency accountability. Contractors must also comply with environmental and sustainability mandates under the Federal Acquisition Regulation (“FAR”). The FAR requires federal construction project contracts to include clauses concerning hazardous materials, emergency planning, waste reduction, environmental management systems, and greenhouse gas disclosures.

Beyond water and materials, federal project are subject to NEPA, which requires the public disclosure or environmental impacts as well as proposed alternatives to the project. NEPA requires federal agencies to prepare environmental impact statements for infrastructure projects if they do not meet a categorical exclusion. Where the environmental impacts are unknown, projects must undergo an environmental assessment (“EA”). If the EA concludes that the project will have an environmental impact, an environmental impact statement (“EIS”) is required. As the understanding of potential impacts to the environment posed by proposed construction evolves, so has litigation. In recent years, litigation has further posed potential impacts to projects, expanded the scope and complexity of environmental reviews, prolonged the process, and elevated compliance costs.

The Supreme Court was recently tasked with determining whether the NEPA has evolved from a public disclosure law to a tool used to block projects altogether in Seven County Infrastructure Coalition v. Eagle County, Colorado. Here, the Surface Transportation Board (“STB”) received a proposal for the construction of an 88-mile railway with potential to quadruple oil production in the Uinta Basin of Utah by connecting its oil fields to the national rail network and delivering crude to refineries on the Gulf Coast. The STB also published a final EIS report, totaling 3,650 pages. The EIS focused on the direct effects of the project itself rather than the potential downstream effects resulting from increased crude oil production from the project and transportation. Environmental groups filed suit, alleging violations of NEPA, the National Historic Preservation Act (“NHPA”), and more. These plaintiffs also contended that the NEPA analysis failed to address risk of accidents from the site and emissions in “environmental justice communities” on the Gulf Coast.

The D.C. Circuit Court of Appeals found for the environmental groups, holding that the STB acted arbitrarily and capriciously when it failed to quantify the downstream effects of increased oil and gas production. The DC Circuit also found that the STB did not assess indirect impacts to the environment and did not provide adequate attention to comments brought before them regarding the financial viability of the railway. In failing to properly weigh the economic and environmental costs of the project, the DC Circuit found that the STB failed to supply and acceptable rationale as to its consideration of relevant policies.

The Supreme Court  reversed the DC Circuit’s opinion in an 8-0 ruling. Writing for the Court, Justice Kavanaugh opined that federal agencies are only required to evaluate the environmental impacts directly tied to their decisions, not every potential consequence of a project. The STB “did not need to address the environmental effects of upstream oil drilling or downstream oil refining. Rather, it needed to address only the effects of the 88-mile railroad line. And the Board’s (study) did so.” The Court stressed that NEPA is a procedural statute – not one that dictates substantive outcome – and that courts must avoid micromanaging agencies’ judgment calls about the detail or scope of environmental review, deferring to reasonable agency choices. So long as the agency provides a rational explanation for excluding certain effects from analysis, the Court opined, agencies are entitled to substantial deference in making scoping judgments under NEPA. Justice Kavanaugh also wrote that courts must only intervene in agency decisions if the decision is outside a zone of reasonableness. Prior judiciary failure to do so has slowed down and blocked projects, causing “litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”

Though the impact of the Seven Counties decision remains to be seen, the opinion may go hand-in-hand with the current administration’s push for shorter review timelines and greater use of categorical exclusions to streamline approval for federal infrastructure projects. The decision reduces the scope and duration of environmental review for federal projects, allowing agencies to focus only on the direct and reasonably foreseeable impacts of the specific project. For the construction industry, the decision might result in fewer multi-year reviews that stall projects and require lengthy EAs and EISs. Additionally, the decision, coupled with the current administration’s push to hasten approvals for projects, might be the next step to ensuring that projects are not overturned due to speculative or minor analytical omissions.

Perhaps the biggest “winners” following the decision are construction companies often engaged in public-private partnerships (“P3s”). P3s rely on both federal approvals and private capital. The Seven Counties decision may make P3s more attractive and more predictable by reducing environmental-review uncertainty and the litigation risk that has consistently discouraged private investors. The narrower scope of NEPA review could result in faster environmental approvals, lower upfront due diligence costs, and fewer procedural challenges and litigation that delay projects. For construction companies that participate in P3s, the decision could lead to clearer timelines and reduced regulatory risk. The Seven Counties decision may also result in increased confidence and incentive for the federal, and perhaps state and local, government to engage in P3s.

The decision does not eliminate environmental safeguards applicable to projects; the FAR is still applicable to federal construction projects, as are regulations for stormwater pollution, hazardous waste, and more. Though this decision may have made project development and due diligence clearer in one respect, contractors still must comply with federal regulations and ensure they perform under the terms promulgated by the contract.

---

Author and Editor W. Tyler Lloyd is an attorney in Stites and Harbison, PLLC's construction group in Louisville, Kentucky. Tyler represents owners, general contractors and subcontractors in all phases of construction projects, including contract negotiation and conflict resolution. Tyler can be contacted at tlloyd@stites.com. 

Anatomy of a Zombie Schedule: From Field Planning to Forensic Diagnosis

Halloween season is upon us… a time for trick-or-treating with kids, dressing up in something fun and, of course, watching scary movies. When it comes to horror favorites, zombie movies often top the list. From Train to Busan and Dawn of the Dead to Zombieland, we can’t help but love a good tale of the undead. Zombies share a few distinct traits: they’re lifeless, without a real pulse, disconnected from reality and, worst of all, capable of infecting others.

Now, you might wonder why zombies belong in a discussion about construction law and project controls. Believe it or not, our industry has its own version of the undead: ”zombie schedules.“ Just like in the movies, these schedules look alive on the surface but are, in reality, lifeless and contagious. They spread confusion across the project, distort decision-making and drain energy from everyone involved. And, just like the heroes in those films, whether a lone survivor or a determined crew, our job is to identify, contain and cure the outbreak of zombie schedules before they take over a project.

What is a Zombie Schedule?

A zombie schedule is one that no longer reflects the project’s actual status, fails to account for changes in scope or sequence, and cannot provide an accurate plan forward or actual progress information from the past. As a result, schedule updates become a chore or a paper exercise, as their only purpose is to produce something that can be submitted as a checklist item. In a zombie schedule environment, project teams often compress and overlap remaining activities to mask delays, making the schedule even less realistic. The more disconnected it becomes, the less motivated the field team feels to engage in updates. This creates a vicious cycle, as sporadic and inaccurate updates lead to an even more “zombified” schedule, infecting project decisions and conclusions that rely on flawed data.

Fortunately, there are proven strategies to bring zombie schedules back to life, both during an active project and in forensic delay analysis.

How to Keep the Schedule Alive on Active Projects

On an active project with a zombie schedule, the goal is to get back on track. The best chance to do that is by taking the following steps:

• Involve the Entire Team: Engage project managers, superintendents, project engineers and field staff to participate in regular schedule updates. When everyone contributes during the update, the schedule becomes a communication tool rather than a compliance task. Each team member will understand what each work activity represents, who oversees it and how it interfaces with others.

• Establish a Regular Update Routine: It is good practice to establish good schedule update hygiene with recurring meeting invites and ensure all members either attend these meetings or provide updates and inputs via other means. The schedule printouts should be distributed to the team after each update.

• Maintain the Right Level of Detail: Use a schedule that is detailed enough to manage the work, but not so granular that it becomes unmanageable. Activities with too short of a duration are cumbersome to update and monitor, while activities with too long of a duration fail to capture necessary interdependencies and are hard to status accurately. The schedule can develop and grow as the project progresses, becoming more detailed as necessary.

• Capture Reality, Not Just Progress: Each update should record not only physical progress, but also changes in sequence, logic and added scope. Keep the schedule “alive” by reflecting what is actually happening on site. Additional scope could be introduced using “fragnets” (sub-sets of activities) or via changes to the existing activities (such as duration increases). The schedulers should keep a log of changes with the reasons behind each modification.

• Monitor the Critical and Near-Critical Paths: The project team should monitor the project critical path, near-critical paths and the driving paths to the key milestones. Avoid gaps in logic and check for open ends, excessive constraints and out-of-sequence relationships. Regular schedule health checks ensure the network remains realistic and mathematically sound.

• Review and Diagnose Changes Regularly: The project team should regularly review schedule updates and determine if the critical and driving paths changed, reasons for such changes and the reasons for delays. It is easier to stay on top of the issues as a project progresses rather than trying to identify what went wrong retrospectively, sometimes years later with a different team than your original project team. Delays that go unnoticed create a “waterfall effect” where small slips accumulate into major impacts. Regular schedule reviews allow timely responses to these delays.

• Avoid the Temptation to “Crush” the Schedule: Re-planning and resequencing can help recover time, but arbitrary compression and overlap of trades often create unrealistic expectations and field congestion. A “crushed” schedule may look good in a meeting, but usually leads to inefficiency, trade stacking, and burnout.

In short, a healthy schedule breathes, it evolves with the project, reflects field reality and helps the team plan forward. Once it stops doing that, it may look alive, but it is already beginning to decompose.

Zombie Schedules in Forensic Delay Analysis

In a forensic setting, zombie schedules pose a different challenge because the objective is not to expect a perfect schedule, but to understand how it was used and what it represents. As AACE’s Recommended Practice 29R-03, Forensic Delay Analysis, emphasizes, CPM schedules are models of reality, not reality itself. The analyst’s role is to evaluate how well those models reflected actual project performance and decision-making at the time. A schedule that was imperfect, yet actively used by the project team to plan, track progress and make management decisions, often provides more reliable evidence than a “corrected” schedule created after the fact by the analyst. The goal in forensic analysis is, therefore, to determine how much analytical value remains in the contemporaneous schedules, not to reconstruct an ideal version that never existed. With that said, 29R-03 permits the analyst to make changes to a contemporaneous schedule and should consider this before abandoning the schedule analysis completely.

To review a potential zombie schedule during forensic analysis, the analyst and counsel should consider the following steps:

• Review Contractual Schedule Requirements: Examine the contract and specifications to identify the standards the schedules had to meet, including update frequency, submittal and approval processes, baseline requirements and specific delay analysis clauses. It should be confirmed whether the contractor followed these requirements and determine how any deviations affect reliability.

• Assess Schedule Health: Run a schedule health check based on contract requirements and/or general industry guidelines to identify open-ended activities, missing relationships, out-of-sequence logic, excessive constraints and other similar parameters. These signs may reveal when the schedule stopped functioning as a planning tool and became a reporting exercise.

• Schedule Sequencing: In some cases, the analyst can identify issues with activity sequencing by reviewing how the schedule was actually used during the project, rather than how it was originally built. If the sequence shown in the contemporaneous schedule was actively used to manage the project and was physically achievable in the field, the analyst may generally treat that sequence as appropriate. However, if the schedule reflects sequences that are physically impossible, such as installing structural steel before completing foundations in the same area, the analyst may question the schedule’s reliability or consider correcting those logic ties before using it in a forensic analysis. This distinction highlights that schedule quality requirements differ between project controls and forensic delay analysis.

• Verify Actual Progress and Dates: Generally, for critical and near-critical paths, cross-check reported progress in the schedules against contemporaneous project records such as site reports (daily, weekly or monthly reports), pay applications, RFIs, submittal logs, meeting minutes, photos and correspondence. These may confirm whether the schedule data reflects what truly happened in the field. As previously stated, you are not looking for perfection, so it is important to keep that in mind when analyzing actual progress and dates.

• Evaluate Schedule Use and Intent: Determine how the project team used the schedule. Identify whether it guided field coordination and decision-making or served only to satisfy submission of a document that nobody looked at during the project. This distinction helps clarify whether the schedule ever functioned as a management tool. If a zombie schedule was used as a decision-making tool during the project, the credibility of a zombie schedule may still exist for the purposes of forensic analysis. It may also be useful to compare the master schedule against lookahead schedules to evaluate if those show similar or different scopes of work being performed on the project.

• Determine Analytical Usability: Use the results of your checks to decide how much confidence you can place in the schedule, for a forensic analysis. If it remains reliable, apply quantitative methods such As-Planned vs. As-Built or Windows analyses. If your review shows characteristics of an unreliable and unused schedule, consider other methods for analysis. Since these decisions depend on the individual experts, it is likely that two experts may disagree on the usefulness of the schedules.

• Isolate and Document the “Living” Portions: In cases where some part of a schedule is usable, identify and document the schedule segments that reflect reality. Based on the method of analysis, the expert may consider different methods and changes to schedules so that a set of reliable data can be used to perform an analysis and clearly show how deficiencies in the rest of the schedules affect the overall conclusions. The expert may have to choose an As-Planned vs. As-Built method that relies on the baseline schedule and as-built data, if the updates are deemed unreliable. If the updates are usable, methods as Windows Analysis or Half-Step Analysis maybe used by the expert.

Ultimately, zombie schedules demand a different level of scrutiny during forensic analysis. By verifying contract compliance, testing the quality of the schedules and isolating valid data, the analyst can separate what remains “alive” from what must be discarded and rebuilt, producing a credible and defensible delay analysis.

Conclusion

Zombie schedules may make for entertaining analogies, but in real projects, they create serious risk. But unlike in the movies, the zombies you encounter on your next construction project can be cured (if not avoided entirely) with consistent participation, honest reporting, and proactive management. When schedules stay connected to field reality, they not only help deliver projects successfully, but also serve as credible evidence if disputes arise.

Whether you are counsel trying to explain the risks of these schedules to your clients, a project manager fighting to keep your schedule alive, or a forensic analyst dissecting one that did not survive, the goal is the same: to understand what the schedule tells you about the life of the project and ensure the next one does not rise from the dead.

---

Co-Author Avi Sharma is a Director at Delta Consulting Group, serving as a consultant and expert in construction scheduling, delays, damages, loss of productivity, and project controls. He has international experience as a general contractor on major infrastructure projects spanning heavy civil, water and wastewater treatment, commercial, transportation, educational, healthcare, residential, sustainable, and mixed-use developments. Avi advises contractors, owners, design firms, and legal professionals on litigation support, expert testimony, construction claims, damages assessment, risk prevention, and claim avoidance. A recipient of the Denver Business Journal’s 40 Under 40 Award and AACE International’s Outstanding Young Professional Award, Avi has also authored and presented numerous papers and articles on construction scheduling, damages, and loss of productivity topics.

Co-Author Alena Rymkiewicz is an Associate Director at Delta Consulting Group. She has extensive practical and academic experience in construction industry, scheduling and forensic delay analysis. She developed delay analysis models and worked with schedules for large and small construction projects worldwide, including hydroelectric, nuclear and coal power plants, subways and railways, highways, bridges, canals and tunnels, ship building, sewage treatment, industrial complexes, hotels, shopping malls, medical buildings and housing projects located in North America, South America, Eastern Europe, Middle East, and Asia.

Understanding Common Risk-Shifting Provisions in Construction Contracts

Whether you are an owner, general contractor, subcontractor, or supplier, your relationship to the project will almost certainly be governed by a contract. While provisions governing payment and scope of work are essential, risk-shifting provisions that allocate certain risks and liabilities among parties play a critical role in protecting you in the event of disputes that, with enough projects, are inevitable. This article outlines some of the most common risk shifting provisions and why you should consider including them in your construction contracts.

1.   Indemnity

An indemnification provision is a contractual provision under which one party (the indemnitor) agrees to assume liability for the losses incurred by another party (the indemnitee). Most commonly, the indemnitor agrees to defend, reimburse, and hold the indemnitee harmless from certain specified liabilities, often those arising from the indemnitor's work or negligence. For example, a general contractor might require that its subcontractors indemnify the general contractor for any claim made against the general contractor that arises from wrongdoing relating to that subcontractor’s scope of work. However, parties should consult with an attorney to make sure that their indemnity language complies with applicable state laws. Most state statutes have provisions that set forth certain requirements for an indemnification provision to be enforceable and upheld in court.

2.   Force Majeure

Force majeure provisions in construction contracts, also known as “Act of God” provisions, excuse parties from liability for delays or failures to perform due to certain unforeseen events beyond their control. To qualify as a covered force majeure event, the event must have such a profound impact on the company or project that it could not have been avoided and forces a change in the conditions of the project that the company cannot avoid or control.  These provisions commonly apply when there is a natural disaster (i.e. hurricane, tornado, flood, earthquake), but these provisions also gained attention during the COVID-19 pandemic. Force majeure events can have massive impacts on a project by significantly increasing project costs or substantially delaying projects. Contractors should consult with an attorney to ensure that their construction contracts include, at a minimum, the force majeure events most likely to occur in the project’s location.

3.   Termination Provisions

Parties to a construction contract should carefully consider situations where termination of the contract may be appropriate. A construction contract should have clear termination rights when any party fails to perform. One common termination provision often included in construction contracts is a termination for convenience provision. A termination for convenience provision provides that a party may terminate a contractor or subcontractor at its convenience for no reason at all. These clauses should contain detailed information about what damages and fees a contractor would be entitled to receive if they are terminated at the owner’s convenience. Parties should consult with their lawyer to determine whether to include, or insist on excluding, such a provision in their contract.

4.   Pay-If-Paid Clauses

A pay-if-paid clause makes payment to a downstream contractor or supplier expressly contingent on receipt of payment by the higher tier entity. For example, a subcontractor subject to a pay-if-paid clause is not entitled to payment whatsoever from the prime contractor unless and until that prime contractor receives payment from the project owner. In contrast, a pay-when-paid clause merely fixes a time for payment rather than establishes entitlement to payment. Thus, to ensure a pay-if-paid provision is enforceable, it should be carefully drafted and include magic words such as “contingent upon and subject to” or “condition precedent” to clearly indicate that the payee is not entitled to payment unless and until the payor receives the funds itself. 

5.   Liquidated Damages

It is critical that construction projects are completed on time. Project delays can have enormous financial impacts. A liquidated damages provision attempts to account for the risk of delay by specifying a predetermined amount of compensation that a contractor must pay the owner for certain delays or failure to meet project milestones. Most commonly, liquidated damages provisions contain a set dollar amount for every day of delay. If an owner insists on a liquidated damages provision, the contractor should ensure that the liquidated damages provision equally accounts for any delays by the owner. Parties should consult with their lawyer to ensure that the liquidated damages provision in their contract complies with state specific authorities, as courts frequently refuse to uphold improperly drafted liquidated damages provisions for various reasons.

Conclusion

It is important to discuss these common risk shifting provisions with your attorney when negotiating a contract for a new project, drafting a new contract for your business you just started, or simply updating your existing contract. Whether you are an owner, general contractor, subcontractor, or supplier, early consideration and analysis of these provisions and concepts are likely to put you in a stronger position when the inevitable dispute arises.  

---

Author Troy Mainzer is an attorney in Carlton Fields, P.A.’s construction group in Tampa, Florida.  Troy represents owners, developers, general contractors, and subcontractors in connection with an array of construction disputes, including but not limited to commercial projects, infrastructure, residential home construction, site development, and other areas.  Troy can be reached at tmainzer@carltonfields.com or (813) 229-4239.