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Practice Points »

Fifth Circuit Considers Limits of the Spearin Doctrine

The court ponders allocation of risk of defective plans and specifications in reversing $1.29 million judgment entered in favor of contractor.


Washington Court Rules a Termination for Convenience Provision Is Not Illusory

The decision in SAK & Associates, Inc. v. Ferguson Construction, Inc. distinguishes Washington law from some jurisdictions that interpret the implied covenant of good faith and fair dealing to impose a limitation on termination for convenience provisions.


Contractor’s Lien Rights Take Priority Based on First Date of Work

A contractor who released its lien of record was allowed to re-record the lien and have priority over a lender based on contractor’s first date of work.

Articles »

Construction Trial Tips: Old School Demonstrative Evidence

By James H. Landgraf

Sometimes counsel may find simple, rather than high-tech, presentation of evidence makes the most sense.

Boon or Bane? Eliminating Email Overload in Law Firms

By Thomas Rowe

What can be wrong with a technology that lets you do in seconds what used to take days?

The Ethics of Email

By Lynda C. Shely

Why lawyers should treat their email the same way they treat letters and pleadings.

Sound Advice »

audio The New AAA Construction Arbitration Rules

By Thomas H. Welby

A revision to the Construction Industry Arbitration Rules went into effect in July 2015. Listen to Thomas Welby explain the rule changes that affect case management, sanctions, consolidation and joinder, ESI, dispositive motions, and more.


audio Early Considerations When Defending a False Claims Act Case

By Patrick J. Greene

Decisions made early in a case can have a huge effect on it. Listen as veteran litigator Patrick Greene walks you through a primer on false claims, explaining what the defense should consider as a case begins. (10:13 min)


audio Single Employer Claims in the Construction Industry and Class Actions for Wage and Hour Violations

By Kevin O’Connor

Via a discussion of the Fair Standards Labor Act of 1938, Kevin O’Connor describes how the single employer theory is a real threat to employers and employees who use employees on different job sites. (5:42 min)


audio Ethics of Insurance Defense

By Thomas Dunn

Listen as Tom Dunn reviews some of the ethical rules that may arise when you are involved in insurance defense work. He begins with what happens when your client is not the person paying the legal bills. (6:18 min)


Roundtables »

audio The Future of Hydraulic Fracturing

“The Future of Hydraulic Fracturing Litigation” will feature a unique group of lawyers and non-lawyers to provide a fact-based peek into the future. The program will include presentations and an interactive discussion among the panelists.


We submitted an ambitious plan for the Construction Litigation Committee at the fall leadership meeting in Austin on October 5-7, and will tell you about it in this and subsequent messages.

Member Conference Call

There will be a committee conference call on November 2, 2016 at 3 p.m. CT/4p.m./ET. Please put this on your calendar and join us by dialing 866-506-1416 and using the passcode 504 566 5259.

We are looking for more member participation, especially from young lawyers, and we want to hear any ideas that you may have for the coming year. Please email us at jbarnum@schnader.com and/or dkurtz@bakerdonelson.com or share it with us on November 2.

The Section of Litigation has asked that we make sure that you are aware of the Professional Success Summit in Atlanta on Nov. 14-16, 2016. Take a look at the speakers and content at this new national conference focused on professional development, especially for attorneys of color. For registrants before October 24, the two day program costs about $500 ($250 for young lawyers). Rooms are $185/night at the Ritz Carlton Buckhead, and airfares in and out of Atlanta are also low. For more information, please find the brochure here and registration here.

Construction SuperConference

The Construction Litigation Committee is pleased to continue its relationship with the Construction SuperConference, which is being held at the Encore at Wynn in fabulous Las Vegas, Nevada, December 5-7, 2016. This year the committee is presenting four programs:

  • Jury Selection in a Construction Case in the Era of Social Media: Who Do I Want, What Can I Do, and When Can I Do It? (Dec. 6, 11:15-12:30)

  • Physical Security in the Design and Construction of High-Risk Construction Projects (Dec. 6, 2:15-3:30)

  • Are Those Your Fingerprints on the Prints? (Dec. 6, 4:00-5:15)

  • Breaking Ground for Women in Construction: The Biggest Pool of Qualified Workers May Be Women (Dec. 7, 1:45-3:00)

We hope you’ll join us at the SuperConference and that you’ll plan to attend these programs. Even better, as a Committee member, you’re entitled to a 20 percent discount on the registration fee. Just enter the code “ABA” as you register online.
Check it out here: http://www.constructionsuperconference.com/

Formation of a New Trial Practice Subcommittee

The Construction Litigation Committee announces the formation of a Trial Practice Subcommittee. Chaired by Ken Levin of Pepper Hamilton in Philadelphia, this subcommittee will focus on developing articles, programs, Sound Advice recordings, and on litigation and trial practice involving construction practice issues. We anticipate that Ken and his subcommittee will address specific trial topics and techniques common in construction litigation including delay disputes, termination disputes, payment issues, and defects. They will work on developing further regional programs and roundtables focusing on best practices in handling these topics in court or ADR proceedings, as well as presenting trial technique articles for the website and newsletter for all construction attorneys from the novice to the 30-year practitioner. This is another opportunity for committee members to spread the word of their practice and expertise among our over 2,200 members and others. Please reach out to Ken to volunteer and offer your experience and thoughts as a member of this new subcommittee.

Regional CLE Workshops

West Coast Regional

Following on the success of our program in New York, “Yes You Can Try a Construction Case: Planning and Handling Construction Cases from Voir Dire to Closing Arguments,” the committee plans to hold the same program in San Francisco on Friday, January 27, 2017. We hope to see our committee members from the West Coast there. There are still a few speaker slots open. If you’re interested in participating, please contact our chair for that program, Scott Tate.

Construction Litigation Leadership

Cochairs Vice Cochair Newsletter Editors

Jeanne Barnum

Cherry Hill, NJ

M. David Kurtz

New Orleans, LA

Karen Layng

Countryside, IL

Web and Social Media Editor
Michael Zicherman

River Edge, NJ



Bob Cox

Tysons Corner, VA

Eric Sparks

Chicago, IL