Understanding the Limits of Privilege When Applied to Witness Prep Sessions

In my last post, Ethical Limits on Preparing a Witness for Deposition or Trial, I took a brief look at the ethical limits on preparing a witness for trial or deposition. This post will continue on that theme and examine the scope of privilege in connection with preparing witnesses for deposition and trial.

Typically, a meeting with a client or client representative to prepare deposition or trial testimony will be covered by attorney-client privilege. Both the communications between an attorney and the client or client representative in preparation to testify are privileged as are the documents provided by the attorney to the client to review in preparation for testify.[i] That privilege will typically apply to all employees of a corporate client, not just the control group or high-level management of the corporation.

However, it is important to note that not everything discussed with a client or client representative in preparing for a deposition is going to be protected by privilege. One such limitation is Federal Rule of Evidence 612 which provides in pertinent part:

if a witness uses a writing to refresh memory for the purpose of testifying, either—

 

(1) while testifying, or

 

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

 

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Most cases hold that FRE 612 applies to depositions, but there a few cases that take a contrary position.[ii] Most cases hold that if a document is used to refresh a witness’s recollection in preparing a witness for their deposition, the party examining the witness is entitled to disclosure and production of the document used to refresh the witness’s recollection.

Rule 612 likely applies when the document used to refresh the witness's recollection would otherwise be subject to work-product privilege or attorney-client privilege. Some cases that hold that the waiver under FRE 612 of any work-product privilege or attorney-client privilege that might otherwise apply is automatic when a document is used to refresh the recollection of a witness, while other courts apply a balancing test looking to whether disclosure is needed for a fair cross-examination of the witness or whether the examining party is engaged in a fishing expedition.  

Under the reasoning of the Supreme Court decision in Upjohn Co. v. United States, almost all courts hold that attorney-client privilege applies to communication between an attorney representing a corporate client and the former employees of the corporate client.[iii] Communication between counsel and the former employees are protected by the attorney-client privilege if the communication focuses on what the former employee knows as a result of the former employment about the circumstances giving rise to the lawsuit. However, examining counsel has the right to ask about matters that may have affected or changes the witness’ testimony, such as communication between counsel and the former employee that goes beyond the former employee’s knowledge of the circumstances at issue and beyond the former employee’s activities within the course of his employment.[iv] Nonetheless, pre-deposition communication with a former employee may be subject to the work-product privilege to the extent that they communicate counsel’s legal opinions and theories of the case.

However, not all courts take the position that attorney-client privilege applies to communications between corporate counsel and the former employees of the corporation. In Newman v. Highland School District No. 203,[v] the Washington Supreme Court declined to extend attorney-client privilege to all communications between counsel for a school district and the former employees of the school district.

Newman involved a negligence suit seeking damages for a permanent brain injury suffered by a student athlete during a football game. The former employees, football coaches, were represented by counsel for the school district for the purposes of their depositions. Counsel for the plaintiff sought to disqualify counsel for the school district from representing the former employees. The lower court denied the motion but ruled that counsel for the school district could not represent non-employee witnesses in the future.

Counsel for the plaintiff also sought discovery concerning communication between counsel for the school district and its former employees. The lower court held that attorney-client privilege did not apply to any communication with the former employees outside of the deposition representation. The Washington Supreme Court ultimately held that the lower court properly rejected the argument that the former employees should be treated the same as current employees for attorney-client privilege purposes and appropriately only allowed the school district to assert attorney-client privilege over communications during the time that the school district’s counsel “purportedly represented them at their depositions.”

In situations where a former employee is represented by counsel for a defendant corporation for the purpose of testifying at a deposition at no cost to the former employee, courts have generally not treated the former employee as having an independent right to assert attorney-client privilege, even when the employee believes that the employee is being represented by the attorney.[vi] Although, as discussed above, the Washington Supreme Court in Newman v. Highland School District No. 20 appears to have reached a somewhat different conclusion.

Finally, there is likely no privilege associated with preparing a third party who is not a client or former employee of the client. Typically, there is no attorney-client privilege with a third party absent a common interest privilege, and disclosure of work-product to a third party with whom there no is common interest privilege waives the work-product privilege. As one court has stated: “The ability of a party to meet with a non-party witness, show him documents and ask him questions and then mask the entire preparation session in the cloak of work product protection would serve to facilitate even the most blatant coaching of a witness if it could not be the subject of inquiry.”[vii]

In conclusion, in most cases, deposition prep meetings with a current or former client representative (as well as the documents selected by counsel for the client or a client representative to review) will be privileged. But, if a document is used to refresh a witness’s recollection, even a document that is otherwise subject to attorney-client or work-product privilege will be subject to production in most cases. Additionally, any communications with a former employee that go beyond the former employee’s activities within the scope of his or her former employment may not be protected by privilege.  Finally, absent a common interest privilege, in most circumstances, there will not be any privilege for communications with a non-client regarding deposition or trial testimony preparation.

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Author and Editor Stu Richeson is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.

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[i] Alexander v. F.B.I., 186 F.R.D. 200, 203 (D.D.C. 1999).

[ii] Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389 (D. Or. 2017).

[iii] Gary Friedrich Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y. 5/20/2021).

[iv] Globalrock Networks, Inc. v. MCI Communications Services, 2021 WL 13028650 (S.D.N.Y. 5/7/2012).

[v] 186 Wash. 2d 769, 381 P.3d 1188 (2016).

[vi] Gary Friedrich Enterprises, LLLC v. Marvel Enterprises, 2011 WL 2020586 (S.D.N.Y. 5/20/2021).

[vii] S.E.C. v. Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012).

Meet the Forum's Neutrals: HON. LISA R. CURCIO (Ret'd)

Company: ADR Systems

Office Location: Chicago, Illinois

Email: lrcurcio54@gmail.com

Website:  https://www.adrsystems.com/neutral/hon-lisa-r-curcio-ret/

Law School: Loyola University of Chicago (J.D. 1989)

Types of ADR services offered: Mediation, Arbitration, Neutral evaluation

Affiliated ADR organizations: ADR Systems

Geographic area served: Illinois

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Q: Describe the path you took to becoming an ADR neutral.

A: I was a judge in the Circuit Court of Cook County, Illinois for over 15 years. I regularly conducted settlement conferences in the cases that were before me.

Q: What percentage of your current legal practice is spent on ADR work? 

A: 100%.

Q: Describe your background and experience mediating construction cases?

A: For the last eight years of my judicial career I was assigned to a call dedicated to Mechanics Lien cases, which, of course, involved all aspects of construction disputes.  Since retirement in April, 2018, I have focused my mediation practice on construction cases.    

Q: What should attorneys and their clients take into consideration when selecting a mediator?

A: Experience, legal and subject matter knowledge, recommendations of other attorneys and of case administrators.

Q: Do you have any practices that you find make you particularly effective as a mediator?

A: Mediation is a process, not an event. Successful mediation requires early communication with attorneys and their clients to learn about their positions, claims and issues, potential barriers to settlement, and whether they have enough information to have an effective mediation session. I use these communications to help set expectations and make a plan for the in person mediation session.  I follow up on my cases that do not settle at the mediation session.

Q: What can attorneys do to best position their clients for a successful mediation outcome?

A: Prepare them for the process. Help them understand that the mediator is a neutral and will not be deciding the case. Work through an objective risk/benefit analysis. 

Q: What experience do you have arbitrating construction cases?

A: Since retiring from the bench, I have arbitrated multi-party and two party construction disputes involving contractors, design professionals and owners. 

Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?

A: Legal and subject matter knowledge. I recommend consulting with others who have knowledge of the arbitrator. 

Q: What factors should parties consider when  deciding whether to opt for a single arbitrator or a panel?

A: Cost, efficiency, need for multiple perspectives. 

Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?

A: I require parties to comply with rules designed to use only necessary discovery and rules of evidence, encourage cooperation in implementing the rules, and limit motion practice to motions designed to narrow issues or that are based upon only legal questions. 

Q: What limits do you place on discovery in the arbitration context?

A: Discovery should be tailored to the dispute. Simple two-party cases can be arbitrated with basic document exchange and very limited depositions. Complex disputes might require more formal document production with considerations of ESI, targeted fact depositions, experts, and third-party discovery. It is incumbent on the arbitrator(s) to work with the parties to determine what discovery is really needed for a fair but cost and time efficient resolution. 

Q: What are some of your interests or hobbies?

A: I am an avid boater.

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Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Toolbox Talk Series Recap - The Mediator's Proposal

In our final edition of the year of Division 1's Toolbox Talk Series on December 19, 2024, Matthew Argue and Gene Witkin discussed the use of the Mediator’s Proposal to bridge any final gaps to settlement between parties to a mediation.  For those unfamiliar, a Mediator’s Proposal is a settlement proposal that the mediator makes to all parties to the dispute simultaneously.  Each party then advises the mediators in confidence whether they accept or reject the proposal.  The Mediator will communicate to all the parties that the Mediator’s Proposal is accepted only if all parties accept.

Argue and Witkin emphasized that the Mediator’s Proposal is not a shortcut and should not be used simply to split the difference.  Instead, it is a tool available to the mediator to push the parties to resolution after they have had robust negotiations, understand the strengths and weaknesses of the positions of each side, and have made progress towards at least getting within range of one another.  A successful Mediator’s Proposal depends on the mediator (and the parties) having sufficient information to make a credible recommendation and creating an environment where all parties will consider the Mediator’s Proposal in good faith.

According to Argue and Witkin, the groundwork for a Mediator’s Proposal must be laid during the mediation, or even before. Mediators should make use of private caucuses with each party to gather information about their private concerns (e.g. timing of payment, funding the litigation, avoiding diverting resources from ongoing projects), driving objectives (e.g. setting a precedent, establishing a reputation), and the impact of third parties (e.g. “empty chairs”, insurance coverage issues).

Then, if there is an impasse, it may still be worth exploring options other than a Mediator’s Proposal.  For example, Argue discussed how, depending on the parties’ personalities, joint sessions can allow parties to leverage relationships and take control of negotiations.  These joint sessions can be especially effective when there is potential for future contracts between the parties on other construction projects.

If the negotiations remain stalled after the above, then a mediator should consider stepping in with a proposal.  However, all sides must express interest in a Mediator’s Proposal beforehand and they must be willing to consider a number from a neutral that is beyond what they have offered.  If the parties are receptive, then it is up to the mediator to come up with the proposal.  Witkin believes that an effective Mediator’s Proposal should be a well-prepared written document, and he often will require a day or two to prepare the proposal to address the most important issues directly. When drafting the proposal, Argue recommends that mediators should remember that the number in the proposal is the mediator’s opinion on a number that is likely to be accepted by both parties rather than an opinion as to what is most likely to happen at arbitration or litigation.

Thank you to Argue and Witkin for their insight into when and how a Mediator’s Proposal should be used to help parties reach a settlement.

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

Message from the Chair: Kelsey Funes (Volume V)

It is hard to believe that we have another year almost done! The close of 2024 is bittersweet for me since it means I am nearing the end of my term as chair of this great division. I am proud of what we have accomplished this year as a division and excited about what we are planning for the year ahead. Gathering some inspiration from the lists that will certainly flood our inboxes and social media feeds soon, I thought it would be appropriate to do a Year in Review (D1 Edition). Here is a summary of some of the highlights from this last year in D1:

1. Practicum Series on Discovery – We kicked off our three-part
series on Discovery in Construction cases at the Fall Meeting in Pittsburgh. I have been so excited about being able to do this program because, as construction lawyers, discovery is our bread and butter. So, this topic really deserves some focused study and training. The first session focused on document discovery and gave participants a great opportunity to learn about how to manage documents (which typically includes voluminous electronic material) in a construction case. Part Two will be on January 15, 2025 in Tampa, FL and focus on fact discovery (including fact depositions) and our final session will be a study of expert discovery in Austin, TX on April 23, 2025. Be sure to register for both of our remaining sessions and pass along the invitation to others who can benefit from these top-notch programs.

The First Installment of D1's 3-Part Practicum on Discovery

2. New “Tuesdays With . . .” Series in the Dispute Resolver Blog – D1’s Dispute Resolver Blog is a jewel in the D1 crown. While it was hard to imagine how it could get better, it did this year. 2024 saw the introduction of a new series in the blog called, “Tuesdays With,” which focuses not on what we can teach each other in our construction practices, but what we can teach each other about life. The first installment was written by Lisa Colon who wrote about her recent heart transplant. Wow. I cannot thank Lisa enough for sharing her story and look forward to other Forum friends who have important life lessons and experiences to share.

3. Get to Know D1 Calls – This year we started a new program with our Get to Know D1 calls. These calls create an opportunity for folks who are new to the Forum or new to D1 to have a discussion with me and a small group of other similarly situated colleagues about how the Forum and D1 are set up, the activities and opportunities for involvement, and creates a forum to ask questions that might not be possible during our busy monthly business meetings. If you think you would benefit from that information, please keep an eye out for the next call.

4. Toolbox Talks Continue to Grow – Our Toolbox Talk series really picked up steam in 2024 including nine talks on varied topics relevant to construction litigation, arbitration and mediation. This year, we kicked off the Toolbox Talk Committee which has recently doubled in size. I am excited about the continued growth of this program and the opportunity it offers for more members to share their knowledge and get involved.

5. Unique Social Events – Last, but certainly not least, we had some really great social events in 2024. The Craps Lesson and Cocktail Party at the mid-winter meeting in Las Vegas was extremely popular and so much fun. Finally, the tent at the French Quarter Fest during the Annual Meeting in New Orleans was an awesome and unique way for us to enjoy our host city.

As we close the book on 2024, I can’t wait for the great programs being planned for 2025. I wish you and your family a safe and happy holiday and all the best in 2025. Hope to see you in Tampa!

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Kelsey Kornick Funes is a partner in the Baton Rouge office of Phelps Dunbar. She represents owners, contractors, subcontractors, suppliers and design professionals in state and federal courts in Louisiana, as well as mediation and arbitration across the Gulf Coast region. She can be reached at kelsey.funes@phelps.com.

Navigating Generative AI in Construction: Behind the Developer's Curtain

Artificial Intelligence (AI) is a concept that is widely discussed, but not many people have seen it working behind-the-curtains. As a seasoned AI developer, the author routinely designs construction dispute AI agents that specialize in using large language models to ingest, analyze, and extract data from construction documents. In this article, the author will provide a behind-the-curtains look into the current breakthroughs and struggles of generative AI, which is an advancement that will continually reshape the construction industry for years to come.

Generative AI – The Current Breakthrough

The current breakthrough, generative AI, was recently unleashed by significant advances in the use of mathematical transformers. These breakthrough transformers are essentially giant calculators for words, which are designed to “predict” the next letter, word, sentence, or paragraph based on some observed pattern.

In the generative AI developer space, we have spent the last two years learning and optimizing how to request and receive information from these large language model calculators. There are arguably two major large language models in existence today with several others contending for the third place. These two primary large language models can be considered the “Microsoft vs. Apple” of the Generative AI landscape. While there are others, these big two, OpenAI and Anthropic, dominate. Each model has taken years to build and train, and each model strives to ingest and compute all written human knowledge in the English language. These primary large language models have a semi open-source philosophy that allows AI developers to “call” the models with computer code and then receive their calculated generative AI reply.

As developers, we pay a small fee for every single “call” to the model. This fee is charged to our developer account based on the amount of words we send, and the amount of words received back from each call. As an example, in a recent project extracting data from daily reports, over 15,000 “calls” to the big two large language models were made over a few hours. Here is where we begin to peel back the curtain on the struggles of generative AI development for construction. There is a maximum length of a question we can ask during each “call” to the models. For example, in this example I could not ask a question longer than about +/- 145 pages of text. This means we cannot simply ask AI to reply with all issues from a large construction document set. We are also limited to about 105,000 generative AI response words per minute, and thus, we cannot just ask thousands of documents a single question all at once.   

Generative AI developers must code programs that work within the constraints of the current large language model call limitations along with devising condensed vector databases to store document data. The industry is working on increasing the limits allowed while also maintaining reasonable compute times for everyone to be able to use it at scale.

AI Agents and Their Applications in the Construction Industry and Claims Resolution

To space out calls to the generative AI models and be within the allowable limits, developers have created the concept of AI agents. Each AI agent is programmed to be a specialist at a specific task, and it uses a series of cascading instructions to perform a small portion of a much larger directive over time. For example, a Data Extraction Agent will read a given document page by page and extract specific facts from each page. The extracted data will then be handed to the next AI agent that specializes in analyzing construction dispute facts related to drilled shafts. Our programmed use of multiple specialized AI agents allows for the calls to the large language model to be spread over thousands of small pieces and then combined into what looks like a single response. This new AI agent process allows for a full AI task to be performed over the entire document set using multiple agents.

Below is a current list of generative AI agents that are being developed for construction dispute resolution:

1)     Deposition Review and Prep Agents

a. Reads each e-mail and identifies main issues and conflicts

b. Recommends people to depose and specific questions to ask about specific emails

c. Prepares legal firm for potential deposition scenarios and topics

2)     Mock Trial Agents

a. Identifies strengths and weaknesses in legal cases using a three-panel judge scenario

b. Provides legal brief and legal management plan to increase the odds of a favorable mock ruling from each judge next time

3)     Timeline Agents

a. Builds event timelines

b. Converts years of daily reports into work performed each day, by location

4)     Data Extraction Agents

a. Extracts-the-facts from repetitive document sets (Example: review each of the 16,000 daily reports and extract any facts that had to do with dewatering that day) 

5)     Contract Risk Matrix Agents

a. Processes the Prime contract, specifications requirements, special provisions requirements, and plan notes

b. Evaluates contractual risk allocated to each party by the contract documents above

c. Prepares contract risk register

6)     Project Notice Agents

a. Processes the prime contract, specifications requirements, and special provision requirements

b. Identifies required notice letters and triggering compensable events listed in the contract

c.  Drafts example project notice letters using anticipated real-world scenarios likely to happen on the project 

7)     Project Issue Agents

a. Reads each letter and identifies main project issue groups

b. Creates issue file (all letters organized by main and sub issue groups) 

8)     Change Order Cost Estimate Agents

a. Creates full cost estimates for specific scopes of work (Noted to be getting much better over the last 60-days with new LLM model releases)

9)     Project Scheduling Agents

a. Creates full project schedules for specific scopes of work (Noted to be getting much better over the last 60-days with new LLM model releases)

Concluding Remarks: Future of Generative AI

Today's professionals need to understand both the capabilities and the limitations of generative AI. The construction industry is at a pivotal moment where generative AI development is accelerating rapidly, and AI agents are becoming more specialized and capable of handling increasingly complex tasks. This article is intended to provide the reader a deeper understanding of how to leverage generative AI within the current technological limitations.

As developers continue to push the boundaries of what's possible with large language models, we can expect the current limitations on call sizes and processing speeds to expand. This will enable more sophisticated AI agents that can handle larger document sets and more complex analyses. However, the fundamental principle remains; success with generative AI requires deep understanding of both construction processes and AI agent processes.

The future is not about replacing human expertise with AI, but rather augmenting human capabilities with powerful analytical tools.

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Author, Travis Olson, is a Director with Berkeley Research Group. He is effective at developing and applying in-house artificial intelligence agents that extract facts efficiently from construction dispute documents. He has more than seventeen years of experience in heavy civil and commercial construction encompassing major infrastructure projects including bridges, dams, water treatment facilities, light rail systems, and commercial high-rise construction. 

Editor, Thanh Do, is a structural forensic engineer and expert witness with Thornton Tomasetti, Inc. He specializes in investigations of construction/design defects and collapses, Design-Build delivery, and standard of care assessment. He also oversees the Forensic Visualization group at Thornton Tomasetti, which produces graphics and animations for trial exhibits/demonstratives.

America’s Bridges and the Need for Bridge Infrastructure Investment

During the October 2024 meeting of the American Bar Association’s Forum on Construction held in Pittsburgh, a city of many bridges, the importance of bridges to our nation’s transportation infrastructure was apparent. Just two years ago, the Forbes Avenue bridge in Pittsburgh collapsed—resulting in several vehicles and a bus falling into a ravine. Ten people were injured in the event. It was later reported that the bridge had received a “poor” rating but was still permitted to remain open to traffic. The event resulted in several lawsuits which, just this past September, the City of Pittsburgh requested $500,000 from the city council to settle. The Forbes Avenue bridge is hardly a unique case and is just one example of the litigation that can ensue if we fail to maintain our aging infrastructure.

The State of Our Nation’s Bridges

As of June 2024, the United States has more than 616,000 bridges located on public roads, including interstate highways, U.S. highways, state and county roads, as well as publicly accessible bridges on federal and tribal lands.

However, according to the American Society of Civil Engineers’ most recent bridge infrastructure report card released in 2021, 42% of all U.S. bridges are at least 50 years old, and 46,154, or 7.5%, of the nation’s bridges are considered structurally deficient, meaning the bridges are in “poor” condition. As ranked by the National Bridge Inventory, bridges are assigned numerical ratings based upon the conditions of a bridge’s roadway and structural components. A rating of seven or higher means that the bridge is in “good” condition, a rating of a five or six means that the bridge is in “fair” condition and a rating of four or less means that the bridge is in “poor” condition. A bridge is given an overall rating of “poor” if any of the bridge structural components is found to be in poor condition which is weighted by the bridge’s roadway or deck area and annual daily traffic. In the U.S., 178 million trips are made across structurally deficient bridges every day.

In recent years, as the average age of America’s bridges increases to 44 years, the number of bridges classified as poor based on unweighted bridge count has continued to slowly decline based upon the nation’s investment in its bridge infrastructure from 10.1% in 2008 to 7.6% in 2018. However, the rate of improvements has slowed and substantial prolonged investment is required to maintain, improve and rebuild our nation’s bridges.

A recent estimate of the nation’s backlog of bridge rehabilitation investment is $191 billion and that annual spending on bridge rehabilitation needs to increase by 58% or from $14.4 billion annually to $22.7 billion annually to improve the backlog. At the current rate of investment, it will take until 2071 to make all of the bridge repairs that are currently necessary. At the current rates of aging and replacement, almost half of the nation’s bridges will require major structural investments within the next 15 years.

Accelerated Bridge Construction

As the rehabilitation and repair of the nation’s aging bridges continues to be a priority, the Federal Highway Administration (FHWA) has been at the forefront of promoting the use of accelerated bridge construction techniques and pre-fabricated bridge elements in bridge rehabilitation and construction projects. Accelerated bridge construction (ABC), or “rapid bridge replacement,” is a bridge construction process that relies on advanced technology, project planning and design, innovative materials, smarter procurement, and new construction methods to reduce the time and effort it takes to replace or rehabilitate bridges.

As a result, state departments of transportation have begun to turn to accelerated bridge construction as a solution for upgrading substandard bridges. State departments of transportation have used ABC techniques to reduce total bridge construction delivery time, realize cost savings, reduce closure time, minimize loss of toll revenues, improve the durability of bridge elements, reduce traffic impacts and long detours, minimize costly use of temporary structures and remote site locations, reduce onsite construction time and weather-related time delays, diminish impacts to the traveling public and road workers to construction work zones and decrease environmental impacts.

Some Best Practices in Accelerated Bridge Construction

Since bridges constructed using ABC methods use prefabricated components built offsite, including utility components, decks, piers, columns, foundations and piles, the number of various prefabricated components should be kept to a minimum.  The prefabricated components should also be repetitive for the same project and relatively easy to transport and install. Early engagement of third-party stakeholders, including railroads, utility companies, and the traveling public, is necessary to create open communications and information sharing that will help influence the aggressive project schedule for an ABC project. Stringent quality assurance procedures should be implemented and stress monitoring should be used to monitor bridge movement during installation. Prequalified list of materials and products should be maintained for incorporation into ABC projects. Certified fabrication plants and certified contractors should be used for fabrication and installation of bridge elements. In addition, due to the accelerated pace of construction, processes should be implemented to reduce worker fatigue including rotation of shifts, increased crew size, and frequent breaks.

Accelerated Bridge Construction “Slide-In” Bridge 3D Animation

Slide-in bridge construction or “lateral slide” is an  ABC technology promoted by the FHWA Every Day Counts program. The program is an initiative undertaken by the FHWA to bring new technologies to infrastructure construction driven by the desire to reduce impacts to the traveling public. The rehabilitation of a bridge using lateral slide technology is effectively demonstrated in the 3D animation produced by the Pennsylvania Turnpike Authority entitled “How Accelerated Bridge Construction works on the PA Turnpike.”

Conclusion

As our nation’s bridge infrastructure continues to age and deteriorate, substantial additional federal and state investment in building, repairing and modernizing our nation’s bridges is required to ensure America’s bridges are safe and operational, meet current and future traveler needs, support local economies and strengthen supply chains. The Bipartisan Infrastructure Law, which established the Bridge Investment Program, dedicates $40 billion over five years to tackle the backlog of bridge projects. Under the program, more than 11,000 bridges are being rebuilt, repaired or modernized. As of October 2024, the Bridge Investment Program has invested $8.1 billion into 100 bridge projects in 44 states across the country and an additional $21 billion in dedicated bridge formula funds used to distribute funding to states for highway bridge repairs and upgrades. Given the bridge repair backlog of $191 billion, additional substantial and long term federal and state investment is required to maintain the integrity of the nation’s bridges.

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

Sources:

National Bridge Inventory – U.S. Department of Transportation - Bureau of Transportation Statistics

Status of the Nation’s Highways, Bridge and Transit – Conditions and Performance 25^th Edition – Report to Congress

American Society of Civil Engineers’ Bridge Infrastructure Report Card (2021)

Accelerated Construction - Construction Strategies - FHWA Work Zone

Delivery Methods for Accelerated Bridge Construction Projects: Case Studies and Consensus Building (March 2020)

Accelerated Bridge Construction: Best Practices and Techniques

Bridge Formula Program (BFP) Questions and Answers

INVESTING IN AMERICA: Biden-Harris Administration Announces Nearly $635 Million for 22 Bridge Projects Across the Country