Predictive coding and litigating force majeure clauses in construction contracts

By Drew Lewis, Esq., ediscovery counsel at Recommind

Construction lawyers understand the importance of a comprehensive force majeure clause.  But in an increasingly tumultuous world where extraordinary events are difficult to predict, where can litigators find the evidence to support (or refute) claims of impossibility or impracticability?  Increasingly, the answer is in their client’s own data.  And with data volumes increasing on a daily basis lawyers are turning more frequently to predictive coding as their tool of choice.

Predictive coding, at the most basic level, is a machine learning system where exemplar documents are provided and the system retrieves other documents that are conceptually similar to the exemplar(s).  The system is language agnostic so it is not simply returning other documents that use the same words; rather it is returning documents regardless of how dissimilar they might appear based on key word analysis alone.  The use of predictive coding was first approved by a court in Da Silva Moore v. Publicas Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012); since that time it has become the subject of comment (and controversy) in the eDiscovery community. 

The ultimate benefit of predictive coding, and other advanced machine learning techniques, is not simply the decrease in labor hours (and subsequent cost to your client).  Instead, the ultimate benefit is to extrapolate the lawyer’s knowledge and insight to data volumes once thought unimaginable.  This extrapolation results in the ability to rapidly find what actually matters in the case, and leverage that information in a strategic manner.

In the construction context it can be vitally important for a party trying to prove (and even disprove) a claim of impossibility of performance by providing deep insight into the digital conversations of key players in the case.  In several instances, the party claiming unforeseen circumstances made performance impossible has produced documents – without the aid of this technology – only to have those documents examined using advanced technologies such as predictive coding, and having their entire theory undone by the data.  Predictive coding can isolate the key documents that showed what the performing party knew at the time of contract formation, and more importantly what they did to explore alternative performance.  The data often stands in stark contrast to the claims made in the pleadings, and it becomes clear what the performing party really knew (and when they knew it). 

Predictive coding, as part of a system of search techniques provides deep insight into what actually happened once performance became impracticable, but does so in a fraction of the time generally associated with the review process.  Parties on either side of the line in construction cases are well advised to discuss the use of this technology with their clients.

Delving Into Mock Trials and Jury Psychology

By: Galina Davidoff Director of Jury Consulting at Magna Legal Services

 Published On: Thursday, July 17, 2014 at www.enewsletters.constructionexec.com

There is hardly an experienced trial attorney who hasn’t lost what seemed like a very strong case. In fact, 68 percent of attorneys’ predictions of legal outcomes are wrong, according to a study.

It is hard to predict legal outcomes because of the great multiplicity of factors involved, especially in jury trials. While everybody knows that jurors’ pre-existing opinions matter, taking them all into account in a particular case is a challenging task. Consider the following two cases and the reactions of surrogate jurors who participated in the mock trials.

 

  

 

1.      In an upper-middle class, conservative venue, jurors discuss alleged violations of federal regulations by an owner of a construction project. The allegations are part of the defense put forward by the construction company, which in turn is accused of poor workmanship. Initially, all seems well for the construction company, but as the discussion progresses, the jurors are increasingly putting themselves in the shoes of the owner, finding more excuses for why he evaded, ignored and broke government regulations. The end result: Regulations are found to be broken, but the violations are deemed irrelevant and the construction company is viewed as responsible for all the alleged defects.

2.      A government agency claims it has no obligation to follow its contract because it is not the contract it intended to sign. The contract involves insurance coverage for multiple construction projects. The insurance company argues that the contract was negotiated by experienced insurance brokers on both sides and clearly says what it says. The case is in a multicultural liberal, mixed-income venue. In deliberations, jurors show disdain for the government agency and its wasteful ways, and eventually find against the insurance company, which they see as being sneaky and exploitative of government inefficiency.

If the venues were switched, the results likely would have been very different. The strategies were good; they just did not match the interests and the mood of the prospective jurors. As deliberations in these mock trials demonstrated, real estate is not only always local–it is also political. Jurors try to stay away from political arguments per se, but their conservative or liberal attitudes are clearly identifiable. This by itself may not be news, but these days peoples’ attitudes can shift and become more polarized quicker than expected.

Litigants and attorneys’ perceptions of the political climate and their own political orientations also play a role in their assessment of the strength of their case. Lawyers and business leaders are as human as jurors and as such cannot fully isolate their personal views. At this time of political polarization, even experienced trial attorneys often look across the divide with a sense of incomprehension, wondering how people can believe what they believe and where do they get their facts. Evaluating cases in such climate is even more challenging.

Because construction cases touch on many issues and opinions, trial lawyers have space to be creative and find juror predispositions that help their case. Neither of the aforementioned cases was hopeless. Different trial strategies produce different results. For example, in the first case, surrogate jurors taught the attorneys that stressing violations of government regulations was not a winning strategy. But they did learn how to focus jurors’ attention on the owner’s complete control over the project and the bad choices for which he now must accept responsibility. Now, when the case goes to trial, the construction company need not lose credibility by talking about government regulations. The insurance company learned that jurors were willing to let an ignorant government agency off the hook. Based on the jurors’ feedback, the company determined how to demonstrate the government agency’s full knowledge of the contract terms and thus its full responsibility.

It is not surprising that attorneys were able to learn so much from the small groups of non-experts. Studies show that groups and even crowds consistently beat experts in evaluating complex problems, such as predicting trial outcomes (see Predicting Civil Jury Verdicts. How Attorneys Use (and Misuse) of Second Opinion). According to the studies, the more experienced an attorney is, the less likely he or she is to take into account opinions of other equally experienced attorneys. The reason groups do better than experts is that people’s mistakes tend to cancel each other out, while experts tend to be entrenched and dismissive of contrary views. Thus, if the only people who evaluate a case are all well-educated and personally invested professionals, it limits the accuracy of the evaluation. For more information on the subject, read James Surowiecki’s The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations.

Time and again, jury research shows that outcomes can be changed with the right strategy and made much worse with the wrong one. Both academic and applied research finds that the best evaluations of complex problems such as civil jury trials are based on a variety of perspectives that come from groups and individuals with varied life experiences. Groups of disinterested observers appear to offer greater wisdom than experts alone in evaluating risks associated with complex events. Perhaps that is the reason jury trials have such an important place in the justice system in the first place.

Galina Davidoff, Ph.D., Director of Jury Consulting at Magna Legal Services, is one of the leading experts in development of winning trial strategies for complex commercial and criminal matters. Dr. Davidoff has consulted on a number of high profile cases and hundreds of cases across the nation. As a litigation and trial consultant, she has assisted her clients in the development of winning trial strategies, jury selection and voir dire, implementation of shadow juries, witness communication training, ordering evidence, opening/closing statements, the development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques.

She can be reached at 866.624.6221 or GDavidoff@MagnaLS.com.

Reprinted with permission from Construction Executive, July 2014, a publication of Associated Builders and Contractors Services Corp. Copyright 2014. All rights reserved.

Tweaking the Federal Rules of Civil Procedure

The federal Judicial Conference Advisory Committee on the Rules of Civil Procedure works continually to update and improve the Federal Rules of Civil Procedure. This effort regularly results in changes to the way each of us handles cases in any forum, since state rules often mirror the federal rules and since arbitral organizations often apply similar guidelines to procedure as set forth in the Federal Rules.

Pending rules amendments can be found at this website. The current proposed rule change getting the most attention are those changes to the rules regarding discovery. A redline version of the proposed changes is located here.  This post will outline briefly the changes proposed to Rules 26, 34, and 37.

Rule 26: Proportionality and Early Requests for the Production of Documents (RFPs)
Current Rule 26(b)(1) grants litigants a broad scope in their efforts to obtain discovery, limited only by Rule 26(b)(2)(C), which grants parties the right to seek court intervention to prevent discovery when: 

the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

The proposed revision moves this "proportionality" language to Rule 26(b)(1) and adds one important consideration: "the parties' relative access to relevant information . . . ." This is aimed at situations -- especially in employment matters -- when one party (the employer) controls most of the information relevant to the case.

A second change that is more substantive in nature relates to when requests for the production of documents may be served. The current rule precludes serving any discovery until a Rule 26(f) conference has occurred. The new Rule 26(d)(2) is to allow parties to deliver requests under Rule 34 on the opposing party so long as 21 days since service of the complaint has passed and the parties have not held a Rule 26(f) conference.  If this occurs, then the RFPs are considered served effective as of the date of the first Rule 26(f) conference.  The Advisory Committee notes state that this change "is designed to facilitate focused discussion during the Rule 26(f) conference.

Rule 34(b): Responding to Requests to Produce
Several important changes in responding to requests for production are included in these proposed rules.  First, of course, the Rule is amended to provide consistency for the dates for responding to the "early" RFPs.  That change is set forth in Rule 34(b)(2).

The rest of the changes are far more substantive and set forth what is now required of parties responding to RFPs. When responding to the request, parties are now allowed to respond by saying that they will produce copies of documents or of electronically stored information rather than permitting inspection.  Production then must be completed no later than the time allowed for inspection set forth in the request or within another reasonable time specified in the response.  It would appear that this change is ministerial in many respects, in that parties have tended to take this route as a practical matter. 

The most important change in Rule 34(b) relates to the objections parties interpose to discovery requests.  Many judges, lawyers, and litigants complain about "boilerplate" or general objections interposed as applying to all discovery requests regardless of whether the general objection actually applies.  Under the proposed new rule, parties would be required to provide specificity to their grounds for objections and, further, whether any responsive materials are being withheld on the basis of the objection. It does not require a log of what was withheld, however, as the Committee notes state.

The Committee notes provide illumination on this last issue. For example, many times parties will object to a document request for being "overly broad." The new rule contemplates that the party interposing that objection must state the scope for the request that is not overly broad and to produce documents accordingly. The example provided is that a party will produce documents that fall within a given time period or that the search for responsive documents is limited to specified sources.

Rule 37(e): Spoliation of Electronically Stored Information
With computers and other electronic devices nearly ubiquitous today, rules to deal with ESI were required. The Committee took its best stab initially in 2006 at trying to find a safe harbor to allow corporations to run their computer systems honestly and in a good faith manner so as to avoid having to keep every byte of electronic information. That "safe harbor" provision did not have any standards provided, and it led to numerous court decisions which refined what was and was not spoliation.

The amended rule is now in at least its second iteration. The Committee offered a proposal in 2013 that tried to provide factors to consider in sanctioning parties. Those factors were rejected after public comment from both the plaintiffs' and defense bar against the proposal. The current proposal, however, made it past the public comment phase.  

As the Committee notes provide, this new rule applies "only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it." Basically, the new rule focuses on factors that courts have used already and first determining whether the loss of information was accidental or intentional. 

If the loss of information was accidental, a finding of prejudice is required and, then, measures "no greater than necessary to cure the prejudice" are authorized.  If the loss of information was intentional and occurred "with the intent to deprive another party of the information's use in the litigation," then the Court may either presume the evidence would have been unfavorable to the destroying party, instruct the jury that is either may or must presume that the information would have been unfavorable to the destroying party, or, dismiss the action or enter default judgment.  

Conclusion
Discovery is the most costly, time-consuming, and occasionally frustrating part of litigation. As the Federal Rules of Civil Procedure change, attorney behavior will follow. Assuming these changes are adopted, it will be interesting to see how attorneys respond.

Certificates of Merit are Not Required to Assert Third-Party or Cross-Claims Against a Design Professional in Texas.

In certain states, a plaintiff seeking to file a lawsuit against a design professional (such as an architect or engineer) based on the provision of professional services must include a “certificate of merit” with the initial pleading. In Texas, this certificate must be a sworn affidavit from a professional with the same license as the defendant that is knowledgeable in the defendant’s area of practice. Tex. Civ. Prac. & Rem. Code § 150.002. It must specifically describe the allegedly negligent acts of the defendant, including the factual basis for each claim. Id. Failure to file the certificate of merit with the initial pleading will result in dismissal, possibly with prejudice. Id.

As a practical matter, this requirement has created tactical problems for general contractors and other construction companies whose scope of work includes responsibility for design. If an owner sues a general contractor for damages arising from alleged design problems, the general contractor must evaluate whether to bring in its design professional as a third-party defendant to bear responsibility for the claims. If the certificate-of-merit requirement applies to such claims, then the general contractor is left with the dilemma of deciding whether to provide sworn proof of the design problems (potentially admitting the general contractor’s liability to the owner) or refraining from joining the design professional (and therefore giving up the benefits of seeking indemnity while the owner’s lawsuit is pending).

In Texas, this issue was recently resolved. In Jaster v. Comet II Construction, the Texas Supreme Court held, in a 5-4 plurality opinion, that defendants and third-party defendants who filed third-party claims or cross-claims against design professionals are not required to file certificates of merit accompanying those claims.

The Court’s decision rested on an analysis of the language of Chapter 150 which requires “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional” to file a certificate of merit (an affidavit signed by a design professional specifically stating what was done incorrectly) with the petition. The Court drew a distinction between “plaintiff” and “third-party plaintiff”/ “cross-claimant” by finding that a plaintiff initiates the lawsuit whereas a “third party-plaintiff”/ “cross-claimant” does not. The Court also found support for that distinction when it interpreted “action” to mean the filing of a lawsuit as opposed to “causes of action” which are the individual claims that make up a lawsuit. The action would be filed brought by the plaintiff as well as causes of action whereas only causes of action would be brought by third-party plaintiffs/cross-claimants.

The Court explicitly did not render an opinion as to whether, in multi-plaintiff suits, each plaintiff would be required to submit a certificate of merit, as that issue was not before the Court.

Notably, there is no majority opinion in this case, which means that the case technically cannot be used as binding precedent. However, the similarity of the concurrence written by Justice Willet to the plurality opinion written by Justice Boyd makes it likely that lower courts can and will consider the majority opinion binding. The concurrence takes the same textual approach as the plurality but instead of focusing on the distinction between “plaintiff” and “third-party plaintiff”/ “cross claimant” the plurality honed in on the phrasing of the statute that describe “the plaintiff” and “the complaint.” The concurrence found that the modifier “the” means a singular plaintiff, thus excluding later claimants, and the initial pleading, not subsequent causes of action added to the complaint. Thus, coming to the same conclusion as the plurality, that the first plaintiff filing the original petition must include a certificate of merit, but subsequent third-party plaintiffs and cross-claimants need not.

Jaster v. Comet II Const., Inc., No. 12-0804 (Tex. July 3, 2014).

Thanks to Nick Brooks at Griffith Davison & Shurtleff, P.C. for assistance with preparing this post.

Good Articles on E-Mail Fundamentals for Construction Professionals

E-mail forms a significant portion of the documentation available for a construction project, particularly when resolving a dispute. Most, if not all, of my cases involving construction issues like the scope-of-work, delays, and defects have relied heavily on the e-mail communications sent before, during, and after the dispute arose.

Gene Heady with Smith Currie & Hancock LLP posted a good article making some helpful recommendations for the use of e-mail by construction professionals during a construction project, including:

1. Avoid using foul language, sarcasm or off-color humor.
2. Keep your e-mails simple.
3. Give facts not opinions.
4. Avoid being self-critical in internal e-mail communications.
5. When upset or angry, rigorously adhere to the 24-hour rule.
6. Use the Subject line to quickly and accurately convey the substance of the e-mail.
7. Only discuss one project in each e-mail.
8. Follow-up important e-mails with letters.
9. Assume deletion of e-mail will not prevent its later recovery.
10. Maintain privileged nature of attorney-client communications.

The entire article is well worth a read, along with a recent companion article from Lee Schumacher at ARCADIS which makes some additional suggestions.

Thanks to ARCADIS for bringing this to our attention through their Construction Claims Blog.

Pennsylvania Supreme Court Upholds and Favors Bright Line Rule Protecting Communications Between Attorneys and Testifying Experts

On April 29, 2014, the Supreme Court of Pennsylvania issued its opinion in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014), and addressed the issue of the scope of discovery and attorney work product under Pennsylvania's rules of civil procedure, particularly the discovery of communications between attorneys and testifying expert witnesses.  The court adopted a bright line rule that communications between attorneys and testifying experts are protected from disclosure.

The case was a personal injury action in which the plaintiff suffered serious injuries when a chair in which he was sitting in a hospital cafeteria collapsed. In response to defendants' subpoena requests, the treating physician withheld records that the physician contended were not created for treatment purposes. When the defendants sought to compel production, the plaintiffs designated the physician as a testifying expert and claimed that all communications between the physician and counsel were privileged. The trial court, after an in camera review, ordered the communications produced. 

The plaintiffs appealed to the Superior Court, where a three judge panel first upheld the trial court's decision, concluding that the defendants were entitled to discover whether the expert's conclusions were his own or guided by counsel. But on the plaintiffs' petition, an en banc panel of the Superior Court concluded that the communications at issue were not subject to discovery and that the defendants had not met their burden of showing "cause" as to why the records should be produced, as required by Rule 4003.5(a)(2). And although the court noted that an in camera review might be necessary to determine which aspects of the communications constituted protected material, the court broadly ruled that the communications were protected from disclosure as attorney work product under Rule 4003.3. Judge Bowes of the Superior Court, in a dissenting and concurring opinion, parted ways with the majority regarding a blanket protection for correspondence between counsel and an expert witness. 

The defendants requested that the Pennsylvania Supreme Court review whether the Superior Court's interpretation of Rule 4003.3 improperly provided absolute protection to all communications between a party's counsel and their trial expert.   The defendants' key issue with the Superior Court's blanket ruling was the issue noted by the first panel of the Superior Court: being able to determine whether an expert's opinions and conclusions were the expert's independent conclusions or whether the opinions and conclusions had been guided by counsel.  

After review of the applicable rules, their history, and purpose, the court acknowledged that while some communications between counsel and experts might solely contain the attorney's mental impressions and legal theories, most would have substantial overlap and intermingling of work product and facts that trigger the attorney's work product. The court further stated that attempting to extricate the work product from the related facts would add unnecessary delay and difficulty to the discovery process, and redaction following in camera review would result in needless litigation, adding expense to the parties and tying up the trial courts. The court found it preferable to err on the side or protecting the attorney work product, given the tools such as cross-examination at trial and interrogatories that opponents could use to find out further information, where appropriate. Accordingly, the court affirmed the Superior Court's bright-line rule and holding.  

While this decision is, of course, jurisdiction-specific and is based on the court's analysis of Pennsylvania's rules of procedure, it will be interesting to see if more courts take - and more attorneys urge - a similar bright-line approach to communications between attorneys and experts and add a prong to the analysis regarding the cost, time, and effort related to in camera review of communications parties believe are privileged and protected.

Another Victory for Insurers of General Contractors

In a prior blog, we discussed what could be considered a trend (or at least a concept worth further monitoring) - courts finding insurance coverage for construction defect claims under standard Commercial General Liability (CGL) policies, even though the defects arguably did not arise from an "occurrence," typically defined in CGL policies as an "accident." In J-McDaniel Construction Co., Inc. v. Mid-Continent Casualty Co., the Eighth Circuit affirmed a CGL insurer's denial of coverage for claims related to faulty workmanship. In the case, the contractor argued that the insurer had a duty to defend because "the legal landscape is shifting and [] states are trending toward including faulty workmanship within CGL policy coverage." The Court of Appeals didn't bite. The opinion can be found at http://media.ca8.uscourts.gov/opndir/14/08/132673P.pdf.

Steering Committee Meeting Minutes (7.14.2014)

DIVISION ONE STEERING COMMITTEE

ABA FORUM ON THE CONSTRUCTION INDUSTRY

Minutes from July 14, 2014 Meeting

 

1.      Steering Committee Roster

Present: Nick Holmes, Tom Dunn, Kelsey Funes, Scott Griffith and Tony Lehman.

Others Participating: Joe Imperiale, Rob Ruesch and Nancy Holtz. 

2.      Approval of Minutes from June Meeting

The minutes from the June meeting were approved.

3.      Chair’s Report

Nick gave a short report on the Forum Planning Retreat which was held on June 26-28, 2014.

4.      “Concepts List” for Division 1 Programs and/or Publications

The first draft of the Concepts List was discussed and additional suggestions were made (copy attached).  Please send Nick any additional ideas you have for possible programs.

5.      Reports from Division 1 Standing Committees

Tony reported that a push is on to update and improve the division web pages as they are one of the primary ways we can introduce ourselves to potential members and to keep our current members advised on what we are doing.  This will be a topic for discussion at the August meeting.

 The Forum is also investigating the use of Prezi to replace PowerPoint.

 Tom reported on the new member directory that is available in PDF format.  This will be updated regularly; it is important for everyone to log on to the ABA web site and review their contact information to make sure it is accurate and up to date.

6.      Planning for the Fall Meeting (October 16 and 17, 2014.  Chicago)

Nick confirmed that the Division 1 Planning Retreat will be held from 2:00 PM to 5:00 PM on Wednesday, October 15, 2014 in conjunction with the Forum’s Fall Meeting in Chicago.  All members of Division 1 are invited to attend and participate.

Tony reported that the Division Program for Chicago is still on track.  He will make sure sufficient time is left for attendees to network after the program.

Rob Ruesch led a discussion on the Division 1 social event which will be held on Thursday evening.  A number of divisions are planning to hold a joint sit down dinner.  The consensus is that we would prefer to have a separate event that is not a sit down dinner so we have more flexibility in socializing and networking.  Rob will report back on possible venues.

7.      Construction Litigation Checklists Project

The steering committee discussed Jason Rodgers-da Cruz’s proposal regarding construction litigation checklists.  Jason was unable to attend this month’s call due to a scheduling conflict.  Nick will touch base with Jason and the steering committee will discuss further at a future meeting.

8.      Next Steering Committee Meeting:

Our next meeting will be held on Monday, August 18, 2014 at 3:00 PM EDT

 

Respectfully submitted,

 

                                                                                    Nick Holmes,

 

US District Court Sanctions Attorney for Excessive "Form" Objections and Coaching during Depositions

Cooperation in deposition practice is a laudable goal, but rarely fully realized.  Depositions get derailed through objections, banter between counsel, and excessive interruptions/breaks. (For a hilarious illustration on deposition practice, click here.)  Because there is no judge presiding over a deposition, and we know most judges do not want parties to submit "petty" discovery disputes that do not directly address material facts of the case, the disruptive conduct continues without check.  It is just "how it is done" even though most everyone wishes it could be different. 

Absolutely read The Security National Bank of Sioux City, Iowa vs. Abbott Laboratories, No. C11-4017-MWB (July 28, 2014)("Abbott Laboratories").  It is a memorandum of decision ordering, as a sanction, an attorney to produce a video for his law firm explaining the inappropriate use of deposition objections, coaching, and interruptions. 

The Court issued the sanctions sua sponte against defense counsel after he obtained a successful defense verdict in a product liability trial.  Sanctions were given based upon the attorney's conduct in two pre-trial depositions.  The trial judge (U.S. District Court Judge Mark W. Bennett, Northern District of Iowa) had reviewed the depositions because certain portions sought to be admitted during the trial. 

While I am pretty sure that most of us have seen far worse deposition conduct than what is described in Abbott Laboratories, Judge Bennett's thoughtful and thorough memorandum of decision is worth a read to remind us how depositions should occur under the rules of civil procedure. 

Here are the major quotes and takeaways from Abbott Laboratories:

• The Problem.  "Discovery is mired in obstructionism. . . . Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of the 'just, speedy, and inexpensive determination of every action and proceeding.'" Abbott Laboratories, p. 2.

• Court's Role. "But the litigators and trial lawyers do not deserve all the blame for the obstructionist discovery conduct because judges so often ignore this conduct, and by doing so we reinforce - even incentivize  - obstructionist tactics. . . . Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators' conditional reflexes will persist.  The point of court-imposed sanctions is to stop reinforcing winning through obstruction." Abbott Laboratories, pp. 3-4.

 

• "Rule 30(d)(2) provides: 'The court may impose an appropriate sanction - including the reasonable expenses and attorney's fees incurred by any party - on a person who impedes, delays, or frustrates the fair examination of the deponent.'" Abbott Laboratories, p. 7, emphasis added.

 

• Form Objections. "Lawyers are required, not just permitted, to state the basis for their objections." Merely saying, "object, form" or "I object to the form of the question" is insufficient in Judge Bennett's view because it does not communicate the basis of the objection to provide the examining attorney with an opportunity to cure a valid objection.  The Court did note that other jurisdictions prefer the limited "form" objection. See Abbott Laboratories, pp. 16-17 (E.D. La., S.D.N.Y., E.D. Tex., D. Minn.) Abbott Laboratories, p. 15.

 

• Witness Coaching - "if you know". "When a lawyer tells a witness to answer "if you know," it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question.  For this reason, '[i]nstructions to a witness that they may answer a question "if they know" or "if they understand the question" are raw, unmitigated coaching, and are never appropriate." Abbott Laboratories, p. 25.

 

• Witness Coaching - "speculation" "vague and ambiguous."  "Counsel's endless 'vague' and 'form' objections . . . frustrated the free flow of the depositions Counsel defended.  They frequently induced witnesses to request clarification to otherwise unambiguous questions."  The Court's view is that these objections are only proper where a question is "truly so vague and ambiguous that the defending lawyer cannot possibly discern its subject matter." Abbott Laboratories, pp. 18-23.

 

• Witness Coaching - "Intermediary"  The sanctioned attorney explained that some of his interruptions were made in good faith to help the plaintiff's attorney. The Court rejected this interpretation of the attorney's objections noting that "[i]t is not for the defending lawyer to decide whether the examiner is on the 'wrong track,' nor is it the defending lawyer's prerogative to 'steer [the examiner] to the correct ground.'" Abbott Laboratories, pp. 26-30.

 

• Excessive Interruptions. The sanctioned attorney's name appeared 381 times in a deposition transcript -- 3 times per page. Abbott Laboratories, pp. 30.

 

• The Sanction. "Counsel must write and produce a training video in which Counsel, or another partner in Counsel's firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified "form" objections, witness coaching, and excessive interruptions." Abbott Laboratories, pp. 31-33.

Share your thoughts and comments about this decision. Do you think it was too much?  Should the Court have issued its sanction in private?   

What is the practice in your jurisdiction regarding deposition objections? The custom in California where I began my practice was to state the basis of the objection as Judge Bennett now requires in the Northern District of Iowa. Many practitioners in Massachusetts and Rhode Island simply state "objection."  What is the better approach?   

Will you bring a copy of this decision with you to your next deposition?  I might. 

Post written by Tom Dunn, member of Division 1 Steering Committee and Co-Editor of The Dispute Resolver Blog.  Tom is a partner at Pierce Atwood LLP and he practices construction law and business dispute resolution in Massachusetts and Rhode Island.

Unbalanced Arbitration Clauses: Are They Enforceable?

A Tenth Circuit case from earlier this year in a non-construction context raises an important question in every context in which arbitration clauses are used.  Generally, construction arbitration agreements are structured in a way which allows either party to the relationship to compel arbitration.  Similarly, most construction arbitration agreements do not limit the types of actions which can be pursued in an arbitration.  In THI of New Mexico at Hobbs Center, LLC, v. Patton, 741 F.3d 1162 (10th Cir. 2014), however, the Tenth Circuit considered the enforceability of an arbitration clause requiring a nursing home patient to arbitrate all of her claims but allowing the nursing home to file suit on certain limited claims -- here, small claims under $2,500, or claims related to guardianship, collections, or evictions.

The arbitration clause in question was upheld initially by the U.S. District Court.  Then, the New Mexico Court of Appeals held an identical arbitration agreement to be unconscionable under New Mexico law.  See Figueroa v. THI of N.M. at Casa Arena Blanca, LLC, 306 P.3d 480 (N.M. Ct. App. 2012).  The question before the Tenth Circuit then became whether an arbitration provision which was unenforceable under state law could nonetheless be enforced under the Federal Arbitration Act.  741 F.3d at 1165.  The Tenth Circuit determined that the decision of the New Mexico Court of Appeals was based on the notion that arbitration as a dispute-resolution process was inferior to litigation.  As a result, the Tenth Circuit held that the FAA would enforce the arbitration provision and, further, would preempt the state court decision on the issue.

How does this relate to construction?  In many large-project contracts and especially for international projects, arbitration clauses allowing one party the right to choose whether it pursues its claims in arbitration or litigation are becoming more common.  Based on case law as it appears currently, it is likely that the United States would enforce such provisions.

A recent article by Alexandra Douglas published by CPR raised the issue as to whether a rule of law similar to would be followed in other countries.  As with many issues in the law, the answer is, "it depends."  In cases from both Russia and France, unilateral arbitration clauses which allow only one party to the agreement to choose litigation or arbitration are unenforceable.  On the other hand, it appears that Spanish courts would be more likely to enforce such unilateral clauses.

As a lawyer, if you are involved with international arbitration and, in particular, with drafting arbitration provisions in international construction contracts, it is important to keep these decisions in mind when advising your clients.

8th Circuit: Arbitrator Decides Whether Non-Signatory to Contract can Compel Arbitration if Contract incorporates AAA Arbitration Rules

In a recent decision, Eckert/Wordell Architects, Inc v. FJM Properties of Willmar, LLC, the 8th Circuit reviewed a Minnesota federal court's order compelling the parties to submit - to an arbitrator - the question of whether a non-signatory party to the contract (FJM Properties) could compel arbitration. The parties' contract incorporated the AAA Rules requiring arbitration. As such, the 8th Ciruit found that the contract provided a "clear and unmistakable indication" that the parties intended for the arbitrator to decide the threshold question of arbitrability; therefore, the 8th Circuit affirmed the Minnesota district court's decision that the issue was to be resolved by the arbitrator, not by a court.

This case is in line with the U.S. Supreme Court decision in Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), in which the Supreme Court found that a contract incorporating the NASD (National Association of Security Dealers) arbitration rules was a "clear and unmistakable indication" the parties intended for the arbitrator to decide threshold questions of arbitrability.

Partial Disclosure of a Source of Potential Bias Justifies Vacating an Arbitration Award in Texas

When compared with traditional litigation judgments, it is much harder to vacate arbitration awards after they are issued. The Texas Supreme Court recently addressed the standard by which an award can be vacated due to inadequate disclosures by the arbitrator.  In particular, the Court had to evaluate whether an award should be vacated due to an arbitrator’s partial disclosure of a source of potential bias or conflict. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 57 Tex. Sup. J. 617 (Tex. 2014).

The AAA Commercial Arbitration Rules require that “any person appointed or to be appointed as an arbitrator shall disclose…any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.” 

The underlying arbitration proceedings were based on a contract dispute between Tenaska and Ponderosa.  The parties’ arbitration agreement provided for a panel of several arbitrators. Lawyers from Nixon Peabody represented Ponderosa and selected Samuel Stern as their arbitrator.  After his selection Stern disclosed the following information to the parties regarding his relationship with Ponderosa and Nixon Peabody: (1) Nixon Peabody had designated him as an arbitrator in three other proceedings, (2) Stern, on behalf of a company named LexSite, had discussions with Nixon Peabody about outsourcing litigation discovery tasks to LexSite, and (3) “Nixon Peabody and LexSite have done no business, and it is not clear that Nixon Peabody would ever have any business to give LexSite.”  Stern, as part of a divided panel, eventually awarded $125 million to Ponderosa.

Tenaska moved to vacate the award in state court, arguing Stern was neither impartial nor free from bias.  The parties conducted extensive discovery on the issue prior to the hearings on the opposing motions. Ultimately, the trial court vacated the arbitration award based on Stern’s failure to disclose that his only contacts at Nixon Peabody were the two lawyers representing Ponderosa, he owned stock in the litigation services company that was pursuing business from Nixon Peabody, he served as president of the company’s U.S. subsidiary, he conducted significant marketing for the company, he had additional meetings and contact with the Nixon Peabody lawyers to solicit business from the firm, and he allowed one of the Nixon Peabody lawyers to edit his disclosures to downplay the relationship with the firm. The court of appeals reversed, holding that Stern’s disclosures were sufficient to put Tenaska on notice of a potential conflict. 

The Texas Supreme Court ultimately upheld the trial court’s vacation of the arbitration award, reasoning that Stern’s failure to disclose the extent of his relationship with LexSite and his attempts to solicit business from Nixon Peabody demonstrated evident partiality and supported vacating the award.  The Federal Arbitration Act allows a court to set aside an arbitration award “where there was evident partiality.” 9 U.S.C. § 10(a)(2).  The U.S. Supreme Court has interpreted the statute to impose a requirement on arbitrators to “disclose to the parties any dealings that might create an impression of possible bias.”  Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 147 (1968). Moreover, the Texas Supreme Court had previously held that “if the arbitrator does not disclose facts which might, to an objective observer, create a reasonable impression of the arbitrator’s partiality,” then the arbitrator exhibits evident partiality. 

Based upon these cases, the Texas Supreme Court held an arbitration award can be vacated if an arbitrator fails to disclose facts which might, to an objective observer, create a reasonable impression of the arbitrator’s partiality. However, information that is trivial will not rise to this level and need not be disclosed.  Looking at the facts regarding Stern’s business relationship, his potential financial gain from procuring Nixon Peabody’s business, and his decision to allow Ponderosa’s attorneys to downplay their relationship, the Court held that the information was not trivial and might have conveyed an impression of partiality toward Nixon Peabody’s client to a reasonable person. Accordingly, the failure to disclose the information demonstrated evident partiality, and the trial court properly vacated the award. 

While this case was decided under Texas law, the Texas Supreme Court’s interpretation of the Federal Arbitration Act suggests that its reasoning could be applied more broadly to cases across the country. In particular, the Court’s decision to evaluate the extent to which a partial disclosure could be misleading could give rise to more challenges to arbitration awards based on disclosure issues.

Thanks to J.P. Neyland at Griffith Davison & Shurtleff, P.C. for assistance with preparing this post.

Standards of Proof for Quantum Meruit Actions: Process Engineers & Constructors, Inc. v. DiGregorio, Inc., (R.I., July 1, 2014)

In Process Engineers & Constructors, Inc. v. DiGregorio, Inc., No. 2013-87 (July 1, 2014), the Rhode Island Supreme Court affirmed a judgment awarded to a sub-subcontractor following a bench trial. 

The case is helpful because it provides standards of proof under Rhode Island law for quantum meruit claims often brought in construction disputes.  The two points are:

1. A plaintiff need only prove it was not at fault for the changed condition (not need to prove cause).
2. No expert testimony is required to prove the costs incurred were "fair and reasonable."  Proof of the value of the services is sufficient.

At trial, the sub-subcontractor plaintiff sought to recover against the party with whom it contracted (the subcontractor) $316,000 based upon extra work performed.  Plaintiff brought breach of contract and quantum meruit causes of action.  The trial justice found that the plaintiff did not satisfy its burden of proof on the breach of contract claims for failure to follow the change order requirements of the contract. 

On its quantum meruit recovery, plaintiff sought to recover for three categories: (1) change order work, (2) increased bond premium charged due to increased contract amount, and (3) additional costs due to replacing a pipe caused by wet insulation. 

As to the first item (unallocated change order work), the trial justice held that the plaintiff failed to meet its burden of showing that a benefit was conferred on defendant and that the defendant accepted the benefit.

The trial justice found in the plaintiff's favor as to the increased bond premium and wet insulation extra work item.  Specifically regarding the wet insulation item, the trial court found that the loss was not due to the sub-subcontractor's action because it was not responsible to dewater the trenches that became wet. 

In its appeal, defendant contended  the evidence presented by the plaintiff was insufficient because the plaintiff did not prove defendant was responsible for the wet insulation.  The Supreme Court framed the issue and its holding as follows:

Whether [plaintiff] only had to prove that it was not responsible for the loss or whether [plaintiff] also had to prove what caused the loss. We hold that [plaintiff] was required to prove only that it was not at fault for the loss; it did not need to prove who was at fault." Emphasis added.

The second issue on appeal concerned the requisite proof that services rendered were "fair and reasonable" for quantum meruit recovery.  Here, the Court shifted the burden on the defendant to establish the claimed charges and costs were unreasonable.  Citing Bruner & O'Connor, the Supreme Court stated:

For purposes of the prima facie case, a plaintiff need only submit evidence of the value of the services; the factfinder is permitted to infer that the charges are fair and reasonable. A plaintiff is not required to put forth expert testimony on the reasonableness of the value of the services during his or her prima facie case. If a defendant wishes to contest the fairness or reasonableness of the value asserted by a plaintiff, the burden shifts to the defendant to prove that the charges were unreasonable. Emphasis added.

The Supreme Court did not explain what level of proof is required for a defendant to establish charges were not "fair and reasonable" or whether expert testimony would be required.  On the specific facts of the case, the Court found that the defendant simply failed to challenge the reasonableness of the costs .  It stated, "[defendant] did not challenge the hourly rates, the number of hours worked, the costs of materials, or the charges for equipment." 

Sign On the Dotted Line! by Hon. Nancy Holtz (Ret.)

“One of the main purposes of mediation is the expeditious resolution of disputes. Mediation will not always be successful, but it should not spawn more litigation . . . .”

So said the New Jersey Supreme Court in the case of WillingboroMall LTD v. 240/242 Franklin Avenue, LLC, 71 A.3d 888 (2013), as it considered a mediation which itself became the controversy. Five depositions, a four-day evidentiary hearing, and two appeals later, the high court set forth a new rule in New Jersey requiring that, to be enforceable, an agreement reached at mediation must be in writing.

The controversy began when a commercial case, arising out of the sale of a mall, was sent to mediation by the trial court. At mediation, the parties reached an agreement. The mediator reviewed the terms of the settlement with the parties, but the settlement terms were not put in writing at the conclusion of the mediation.

Several weeks later, in what may have simply been a bout of buyer’s remorse, Willingboro’s manager balked at the settlement. He complained that his attorney and the mediator had unduly pressured him to settle. In his words, he would have confessed to the Lindbergh kidnapping and the Kennedy assassination if it meant he could have extricated himself from an “incredible uncomfortable, high pressure situation.”

With Willingboro refusing to honor the deal struck at mediation, Franklin brought a motion to enforce the terms of the settlement that included certifications from its own attorney and the mediator disclosing communications made during the mediation. Rather than oppose the motion invoking the mediation communication privilege, Willingboro opposed the motion with its own disclosures of confidential communications.

During the evidentiary hearing conducted by the trial court, Willingboro changed course and moved to strike the confidential communications already disclosed. But the trial court found that Willingboro had waived the privilege and that a binding agreement had been reached between the parties. On appeal, the appellate division affirmed.

Willingboro next appealed to the New Jersey Supreme Court and two issues were certified: (1) whether New Jersey law required that a settlement agreement reached at mediation be reduced to writing at the time of the mediation to be enforceable, and (2) whether Willingboro had waived the privilege that protects communications made during mediation from disclosure.

The New Jersey Supreme Court noted that there is a mediation communication privilege with only two exceptions: (1) the signed writing exception, which allows a written settlement agreement to be admitted into evidence to prove a settlement; and (2) when there is a waiver of the privilege.

The court stated that “[i]n the absence of a signed settlement agreement or waiver, it is difficult to imagine any scenario in which a party would be able to prove a settlement was reached during the mediation without running afoul of the mediation-communication privilege.” The court upheld the ruling that Willingboro had waived the privilege and that the settlement was binding.

Recognizing that the court system favors the settlement of disputes by mediation, the court observed that the success of mediation depends on confidentiality. To protect this confidentiality while encouraging the use of mediation to reach binding settlement agreements, the court announced a new rule: “[G]oing forward, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforced.”

As the courts continue to encourage mediation as a more economical and expeditious means to resolve cases, this new rule in New Jersey will no doubt be adopted in other jurisdictions that have yet to address the issue. A signed writing (or video or audio recording, which the high court suggested as an alternative) may ensure the enforceability of settlements reached at mediations.

A Mediator’s Takeaway

Mediators may wish to provide a standard form that attorneys can utilize to memorialize the key terms of a settlement. In the event the parties are not able to complete a memorandum of understanding before the close of the mediation proceedings, the mediator may want to suggest that the mediation remain open until the settlement is reduced to writing.

Parties choose mediation for expedience and economy. Willingboro should serve as a cautionary tale to mediators: Parties are entitled to rely on the guarantee of confidentiality at mediations. If a dispute arises, a mediator may not divulge privileged communications in order to assist a party in enforcing a settlement reached during mediation. The result in Willingboro speaks volumes about the consequences of disclosing confidential communications.

Hon. Nancy Holtz is a mediator and arbitrator based in Boston, Massachusetts providing neutral services nationwide.

_________________________________________________________________________________________________________

© 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Effective Risk Management Planning - Step 2 - Quality Over Quantity

Division 1 is pleased to provide Andrew Englehart's, principal at Construction Process Solutions, Ltd., second installment of his series on Effective Risk Management Planning.  To review Step 1 - Identify Your Team - click here.

* * *

How Should We Go About Documenting Our Project?

A Pound of Bologna or that 4 Oz. Fillet??

 

How many times have you heard, “We didn’t document that project well enough?” Such regrets are typically aimed at the lack of stacks of documentation. However, quantity does not equate to quality, and often times, in the interest of a perceived desire for pushing as many e-mails through the pipe, the project team loses sight that the quality of the documentation is more important.

What is meant by referring to “quality?” There are 4 primary characteristics that a project player should consider when considering a project’s plan for documentation, as well as when considering what, when, to whom, how, and in what “form” a particular piece of documentation should go out:

·         The substantive nature of the documentation.

·         The documentation’s conformance with the contract requirements.

·         The documentation’s conformance with the “big picture” risk profile.

·         The documentation’s form and how effective it can be used in a forensic setting.

The content of the documentation should be factually accurate, sufficiently comprehensive, but the aim should be for brevity.  Avoid positions in documentation. There are certainly times when positional communiqué need to occur, but such communiqué themselves should rely upon quality documentation. As a particular practical tip, a common oversight in the preparation of documentation is to focus on what is occurring, as contrasted to, or perhaps complimented by, registering what should have been occurring, but couldn’t and why.

The documentation must strive to conform to the contract requirements. It is particularly galling to incur the emotional and real cost of producing documentation, only to see the effectiveness significantly undermined because of a failure to conform to the contract. In order to do so, the first step is to read the contract. Not surprisingly, most project level players fail to review and gain an understanding of what the particular project’s documentation requirements may be. Upper level project management (particularly those charged with P/L and risk management) should provide an abstract of the contract’s requirements and ensure that the organization’s processes and protocols can be molded to fit those requirements, and that those documenting the project understand what those requirements are. Don’t fall into the “This is the way we have always done it” trap.

Before drafting that e-mail (and certainly before hitting the “send” button), or before filling out that daily log, documenters should take a breath a read what they are proposing to write and think how it will read a year later. Superintendent and foremen daily logs are often rife with complaints about their own company. Needless to say . . . those come back to haunt them.

Finally, if the documentation is so cumbersome and expensive to retrieve and use, then all the time and effort in preparing it is wasted. As part of an organization’s risk management plan, the use (and power) of technology should be considered. Handwritten daily logs, while perhaps tradition, and clearly served a purpose 30 years ago, are often illegible, incomplete, incoherent, and require a monumental amount of time and resources to be useful in a forensic setting. Innovative (and intelligent and appropriate) uses of ubiquitous programs such as Excel should be considered. (Note: Excel is essentially a data base compilation application. However, to utilize its robustness, the user must recognize the importance and power of entering individual types of data into individual cells, and doing so in a consistent fashion. In other words, it should not be used as word processor.)

Documentation is a key part of any risk management program. However, the difference between an effective risk management program and one that fails is the quality of that documentation and not the quantity produced.

“It is quality rather than quantity that matters.”

Lucius Annaeus Seneca

 

Andrew T. Englehart

Principal
Director of Dispute Resolution Support Services
Construction Process Solutions, Ltd.
www.cpsconsult.com