THELEN, MARRIN, JOHNSON & BRIDGES
The Relationship Between Communication And Technology
The focus of this conference is the relationship between leadership and technology in the construction arena. Many of the speakers will stress the importance of communication as one of the vital links necessary to allow managers to utilize technology. Moreover, communication is a key component of any successful construction project. The speakers will share with you examples of communication systems that are tried and true in this area.
Although a lawyer may participate in many phases of a construction project, from the acquisition of property through the preparation of contract documents, most frequently, lawyers are involved in projects where a dispute has arisen with respect to one or more aspects of the project. It is generally the lawyer's job to examine the facts and determine the appropriate legal theories for the pursuit or defense of a position and, if necessary, to present that case before an appropriate tribunal for determination.
Disputes on construction projects are typically fact- intensive -- that is, any event is the product of a number of causes. The most fertile source of information with respect to such facts and events will be the project documentation. The
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types of documentation routinely generated on construction
projects, such as daily dairies, quality control reports,
requests for information, submittals, and the normal
correspondence provide a vast resource of facts to be evaluated
and distilled in connection with any dispute. However, there are
significant differences between the manner in which these
resources are utilized by personnel on a project and the manner
in which they are utilized by a lawyer. While not all
construction projects result in disputes and litigation, it is
helpful to keep these differences in mind.
First, there will be a different level of emphasis on the documentation. While a construction project may literally generate millions of documents and involve thousands of issues which need to be addressed and resolved, a construction dispute will center only on one or several such issues. The resulting microscopic scrutiny will tend to underscore any flaws or imperfections. Consider the fact that the Hyatt Regency in Kansas City involved innumerable changes and modifications, but the criminal and civil actions following the tragedy centered only on a seemingly innocuous request to modify the method by which the box girders supporting the walkways were attached to the structure.
Second, in addition to involving a higher level of scrutiny, the documentation is examined in a forum unfamiliar to many and much more formal than the atmosphere surrounding a project. For example, information in documents is subjected to
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rules of evidence. Those rules require authentication and
prohibit hearsay even though people often assume authenticity and
make decisions on the basis of hearsay information in their daily
lives. In some cases, key facts which are necessary to
understand or to explain a document may be deemed inadmissible
under the evidentiary standards and thus the trier of fact or the
arbitrator may not have the benefit of considering a document in
its complete surroundings. Similarly, oral testimony is given
under oath and is subject to cross-examination which is hardly
the most relaxed or efficient means of obtaining a person's
recollection of an event.
Third, although lawyers will attempt to utilize documentation to support their respective positions, they very often also emphasize the absence of documentation in an effort to support their position. A failure to provide notice in the format prescribed by the contract documents, the failure to challenge an allegation of defective performance in a piece of correspondence, the failure by an owner's inspector to note any deficiencies in the work all may be used in support of various arguments. In essence, there may be instances where you must be more concerned with what is not in the documentation than you are with what is in the documentation.
The reason, of course, that lawyers rely heavily on the written word is that it is very often the only reliable reflection of what occurred. Absent some writing, we must rely the human memory -- a wondrous thing but imperfect in many
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respects. People's memories are uneven and are often influenced
by personal viewpoints or biases. In many cases, one party's
recollection of a meeting or event is so at odds with other
participants that no meaningful conclusion can be drawn as to
what actually happened unless there is some record against which
to measure the likelihood of accuracy.
Fourth, the forum for resolution is often not just unfamiliar, it will involve a decision by an individual or group of individuals who have little, if any, familiarity with the construction industry and essentially no in-depth knowledge of the particular issues and dispute. Although many contracts contain arbitration clauses which provide some assurance that the individual or panel of arbitrators will have a level of familiarity with construction, many contracts are silent on the issue. The result is that a dispute will be litigated in a state or federal court and will be decided by a judge or jury who may have no experience with the construction industry.
Proponents of "Defensive Driving" would have you drive as if every oncoming car posed a threat of a head-on collision and suggest that you should always be prepared to take the necessary evasive action. Collisions in fact occur but they do so relatively infrequently given the number of cars that pass each other on a daily basis. Thus, the prospect of treating every oncoming vehicle as a likely participant in a crash becomes simply impractical. Similarly, I do not advocate approaching every construction project or every construction document as if it will end up the centerpiece of a dispute involving millions of dollars. And yet every project and many documents generated on a project site hold such potential. A few simple rules which are equally applicable to good business writing will help avoid or deflect possible criticism in the litigation arena:
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