Toolbox Talk Archive

Past Toolbox Talks:

Analyzing the Issue of Undocumented Change Order Work (August 29, 2024)

How many times have we seen projects where contractors are required to perform change order work under scheduling pressures without a signed CO only to end up in a dispute when it comes time for upstream contractors or owners to execute the CO and pay for the work? How do pay-when-paid provisions affect payment for undocumented CO work? How can contractors protect their rights under construction agreements that do not expressly permit equitable adjustments or expressly prohibit them? This Toolbox Talk addresses how contractors protect their rights to payment in cases where they proceed in good faith with undocumented change work.

Speakers:

Don Rea, Law Offices of Donald A. Rea, LLC

Preserving Evidence After Façade Failure (April 25, 2024)

Speakers:

David Schnerch, Senior Engineer & Building Science Specialist, RDH Building Science Inc. 

Rule 26(f) Conferences: E-Discovery Protocols (April 4, 2024)

Preparation before meeting with opposing counsel to frame discovery, and rounding up information about your data. 

Speakers:

Steve Swart, Corporate Counsel, Rand Construction Corporation

Julian Ackert, Managing Director, iDiscovery Solutions

The Role of Certified Public Accountants (CPAs) in Construction Litigation (February 29, 2024)

Chad Garcia discusses the Role of Certified Public Accountants in Construction Litigation.

Speakers:

Chad Garcia, CPA, CFE, Berkeley Research Group

5,280: A Measured Mile, Yes...But is the Scheduling Methodology that Straight Forward (October 26, 2023)

What is and what is NOT a measured mile. The discussion leaders will guide us on how to use the preferred scheduling methodology and ways to effectively counter incorrect applications

Speakers:

Andrew Vicknair, Darcy Vicknair, LLC

David Ponte, P.E., CFCC, Ankura Consulting Group, LLC

Arbitration Motion Practice: Is it worth it? (June 22, 2023)

Do motions actually assist in streamlining the process or are they more likely to be denied without prejudice pending testimony. 

Speakers:

Adrian Bastianelli, III, Counsel, Peckar & Abramson, P.C.

Brian Cashmere, Partner, Williams Mullen

Jennifer Millender, Director of ADR Services, American Arbitration Association

 

Strategy in the Hot Tub (May 25, 2023)

Prospects, pitfalls, and best practices for the use of expert-witness conferencing in construction arbitration. 

Speakers:

Michael R. Martin, Jr., CPA, CFE, CFF, Director, LitCon Group, LLC

Joe Rakow, Ph.D., P.E., Group VP and Principal Engineer, Exponent, Inc. 

Moderator: Marcus Quintanilla, Global Dispute Resolution

Optimizing Dispute Resolution Clauses (April 26, 2023)

The discussion leaders will provide guidance on how to make such clauses clear, actionable, fit for purpose and pragmatic. How should the clauses be adjusted based upon contract size, scope, and risks? What to consider when there are multiple and/or related parties involved to avoid conflicting agreements? How to approach multiplayer companies, parent company inclusion? How to avoid conflicts such as having different applicable governing the contract vs the arbitration? 

Speakers:

Sergio Andre Laciau, Partner at Mello Torres in Sao Paolo, Brazil

Liza Akins, Senior Assistant GC and Division Counsel at ARCO Design/Build

Moderator: Manuel del Valle, Vice President, Peritia Partners

Improving Arbitration: In-House Counsel's Perspective (March 23, 2023)

Interview with Leslie King O'Neal and Laura Abrahamson about their perspectives, as in-house counsel, of how outside counsel can do better in arbitration. 

Speakers:

Laura Abrahamson, JAMS

Patricia Thompson, JAMS

Leslie King O'Neal, JAMS

Strategies to Defeat or Mitigate Attorney's Fee Prevailing Party Provisions (December 8, 2022)

What do you do when your construction client is facing an attorney's fee provision-statutory or by agreement? What tools and procedures can your client do to insulate this risk? If a prevailing party attorney's fee provision is present, how can you posture your case to prevail? 

Speakers:

Catherine Delorey, Gordon Rees

Tom Dunn, Pierce Atwood LLP

Mark D. Johnson, Lanak & Hanna

Design-Build Standard of Care (October 27, 2022)

Is it different during the Proposal Phase? What are the duties and obligations of the Design Professional to the Design-Builder during the proposal phase? Is there a situation where the Design Professional should be held liable for faulty assumptions?

Speakers:

Joel Heard, Osler, Hoskin & Harcourt, LLP

Thanh Do, Ph.D., Thorton Tomasetti 

Ethical Conduct for Advocates and Neutrals (Rules and Remedies for Mediation Misconduct) (September 22, 2022)

How do we know when zealous mediation practice by advocates or neutrals crosses the line into abusive or even illegal behavior, and what can the client, counsel or neutrals do when it does? 

Speakers:

Deborah Ballati, JAMS

Patricia Thompson, JAMS

Desperate Measures: Using Prejudgment Remedies to Secure Payment and Gain Traction (June 23, 2022)

Liens and bonds provide security, what do you do when a lien or bond may not be available? We'll discuss strategies to use at the outset of a dispute when you really have to force the issue to collect.

Speakers: Gregory Gillis, Sacks Tierney Christopher Ng, Gibbs Giden Sakib Khan, Khan Law PLLC

Your Mediator and Arbitrator are the Same Person: Is This Ever a Good Idea? (May 26, 2022)

Often mediators are asked to serve as the arbitrator in complex construction matters but is it really a good idea? The information provided in the mediation aspect of the case can't be unlearned so how do you switch roles? There is also the fairly new med/arb hybrid process and is that a good compromise, does it cause more problems and is there any type of uniformity in the process yet?

Speakers: Neil Eiseman, Eisman ADR, LLC Jen Millender, Director of ADR Services, American Arbitration Association

Not My Job: Litigating and Avoiding Delegated Design Disputes (March 14, 2022)

Joint Division 1 (Litigation & Dispute Resolution) and Division 3 (Design) 30 minute zoom meeting to learn about and discuss dispute resolution and avoidance strategies concerning claims arising out of delegated design and the hybridization of design and performance specifications. Does Spearin apply where there is design delegation? What if the performance requirements are commercially impractical and/or impossible to achieve?

Speakers:

Sakib Khan, Khan Law PLLC (Division 1)

Joelle Jefcoat, FAIA, Esq., Perkins & Will (Division 3 Chair)