Conversations with My Younger Self: 5 Things I Wish I Knew Then

The author, Steve Swart, on his graduation from
George Mason University School of Law (2009)

I remember the morning I became a construction law attorney. It was on my birthday several years ago when a partner called me into his office and asked me to review the A107 contract form for a large firm client. The assignment gave me a new language to speak and contract provisions that I came slowly to understand.

I quickly moved into construction litigation and would soon learn that a "fragnet" was not the newest social media app but an important part of a delay claim. I read Spearin's biography and learned how to assess recoverable damages for different claims—costs to repair, replacement and betterment, increased financing/carrying costs, and the like.

It took a lot of blood, sweat, and tears to get to where I am now. Echoing Rod Stewart’s sentiment—“I wish that I knew then, what I do now, when I was younger”—here are five tips I’d pass along to the younger me or anyone who is beginning their career as a construction lawyer:

1. Read and Analyze All of the Contract Documents.

In many places, the Contract is king and “the law of the case.” The Agreement and General Conditions are a great place to start, but that's only the beginning. Per the standard A201 General Conditions, Section 1.1.1, the “Contract Documents” include:

• The Agreement,
• Conditions of the Contract (General, Supplementary and other Conditions),
• Drawings,
• Specifications,
• Addenda issued prior to execution of the Contract,
• Other documents listed in the Agreement, and
• Modifications issued after execution of the Contract, which include:
• written amendments to the Contract signed by both parties, 
• Change Orders,
• Construction Change Directives, and 
• written orders for a minor change in the Work issued by the Architect.

The Specifications are particularly crucial to understanding each party’s responsibilities and the legal theories. Typically, the Specifications are organized by “Divisions” applicable to various trades/types of work. The “Divisions” most commonly used are based on the Construction Specifications Institute (CSI) MasterFormat, which has Divisions 00 through Division 48.

Many procedural/claim/closeout requirements may be found in Divisions 00 (Procurement and Contracting Requirements) and Division 01 (General Requirements). This is important as a potential source of duties/responsibilities not covered by the Agreement or General Conditions.

Study the Division applicable to the portion of work in issue: for example, if you’ve got a problem with your HVAC System, start with Division 23 (Heating, Ventilating, and Air Conditioning). These Divisions will likely contain more specific installation instructions, warranty requirements, and references to industry standards (more on that below) than the Agreement and General Conditions.

Next, come the Drawings. There is a wealth of information in the Drawings, including notes on how to perform portions of the Work, details on how it is to be installed, and limitations on what is required — i.e., Work that is included graphically and items that are omitted from the Drawings.

Finally, you have to review the Change Orders. Although the Agreement, General Conditions, and initial Issued-for-Construction Drawings and Specifications are important, they are static and only reflect the initial agreement. I’ve never encountered a project without modifications. Understand the chronology and effects of Modifications to the Contract Documents—Modifications are Contract Documents themselves and they may change the particular aspect of the Work at the heart of your case.

2. Be Curious About the Technical Aspects of the Project

A quote attributed to Arthur Aufderheide is helpful here: “All knowledge is connected to all other knowledge. The fun is in making the connections.” One of the keys to construction litigation is in connecting the technical aspects of the case to the legal ones. Don’t rely solely on experts — be curious and understand how the technical aspects of the Work tie into your legal theory (or raise a problem for the other side).

Yes, this requires effort. It means digging into not just the Specifications and Drawings (although those are important) but also (1) the referenced industry standards, (2) manufacturer literature (Shop Drawings, Product Data, Samples, Submittals, etc.), and (3) Requests for Information and responses regarding the key technical parts of your case. That work often requires expert assistance. But don’t be afraid to dig into architecture, engineering, or technical industry sources — go outside the box. You don’t have to fully understand them, but they are helpful in understanding what was required, what Work was done, and what might be the disconnect. For example:

• If you have or are facing a delay claim, you can read the Association for Advancement of Cost Engineering International (“AACE”) Recommended Practices;
• If you have or are facing a claim about window installation, you can look to the American Architectural Manufacturers Association (“AAMA”) or National Fenestration Rating Council (“NFRC”) for pertinent information.
• Have a case about elevators? Look at American National Standards Institute/American Society of Mechanical Engineers Standard A17.1: Safety Code for Elevators and Escalators.

The list isn’t exhaustive: the point is that technical resources are out there. Google or YouTube work to illustrate technologies you don’t yet understand. Mastery is not required, but curiosity and extra reading are important: you have to connect your legal knowledge with your new-found technical know-how.

3. Consider Multiple Remedies/Causes of Action — Not Just Breach of Contract

Breach of contract is a stock cause of action nearly always raised in construction cases. I would caution my younger self, however, to look harder at the contract remedy-granting clauses and other causes of action/remedies. Start at the treatise level (Bruner & O’Connor, Nash & Cbinic, ABA Forum Publications). They will lead you to additional actions/remedies/legal theories that may bolster the entitlement or damages part of your case, including:

• Acceleration (Constructive or Directed)
• Constructive Change
• Equitable Adjustment
• Good Faith and Fair Dealing
• Cardinal Change
• Warranty/Strict Liability
• Mechanic’s Lien
• Statutory Warranties
• Contractor’s Right to Repair and Notice
• Indemnity
• Betterment
• Economic Waste
• Waiver/Release

A further description of potential actions/remedies/defenses, including those above, is beyond the scope of this post. The point, as above, is to be curious and think outside the box. Look at the case whollistically — what are your issues and what remedies have been developed to address them? There are many possibilities.

4. Read Federal Decisions in Government Contract Cases

The decisions rendered by the Federal Circuit, Court of Federal Claims, and agency Board of Contract Appeals decisions in government contract cases have a wealth of information for the construction lawyer.

These opinions typically address theories of liability, entitlement, damages, and remedies in greater detail than state courts and are often adopted in, referenced by, or persuasive to explain the legal issues to state and federal judges who may not have a construction background. They are “must-read” resources for the construction litigator to hone his or her case.

5. Explain Your Case at a 7th Grade Level

Lastly, and most importantly, distill the technical and legal arguments to a 7th grade level. Per a quote attributed to Albert Einstein, “If you can’t explain it simply, you don’t understand it well enough.” This is key to any trial or hearing whether your fact finder will be a judge, jury, or panel of arbitrators. Your case must be catchy and understandable.

Take these two examples, and figure out which one you like better:

Example A: The Tyvek air barrier was not wrapped into the head, jambs and sills in accordance with the AAMA Standard 2400-02, Section 5.3, and the window manufacturer’s installation procedures, resulting in water infiltrating a gap in the building air barrier and damaging the exterior sheathing.

Example B: The windows were not caulked and sealed as required by the manufacturer and good practice, allowing water behind the Tyvek barrier and damaging the wood framing.

Both examples convey the same concept but Example B does so in a way that is easier to grasp. The point is, just like any litigation, the technical aspects must be understandable and digestible. It’s not easy and may take months, but the resources mentioned above—your expert, treatises, other cases, your co-counsel—will help immensely. Just remember that if your theory of the case would bore your friends or significant others, it will probably get the same reception from a judge or jury.

A final point: Construction litigation is fascinating, combining many legal theories with really interesting technical knowledge into a concise, digestible presentation. Getting there, however, is not easy. I wish I had the five points above when I was starting out and hope that I can continue to implement them as I grow.

Someday, they may help you, too.

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Author Steve Swart is a construction attorney with Williams Mullen in Tysons, Virginia. Steve counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Steve can be contacted at sswart@williamsmullen.com.