Advise & Consult: A blog for (and by) expert witnesses

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advise and consult, inc blog

advise and consult, inc blogOne vital marketing rule is to differentiate your business or service. Advise & Consult, Inc. certainly has done that. This business focuses on providing expert witnesses for construction litigation. The myconstructionexpert.com blog, written by several experts on diverse topics including insurance claims, construction law, construction contracts, and other topics, provides a wealth of information about key litigation and decisions affecting the construction industry.

Here is an example of the blog’s content, a topic that could cause some contention if you talked to contractors: “Construction tip #7: Developers Should Not Rely Entirely on Standard Forms of Construction Contracts.

Form Contracts Must Be Carefully Revised and Tailored To Meet Project Needs

Although most people with experience in the construction industry are aware of the availability of standardized contract forms, many may not know that these documents often require more than a simple process of “filling in the blanks.” In our experience, it may be critical in some instances, to heavily revise the contract forms to properly reflect all necessary terms and protect each of the parties involved. This process, which may in certain cases require significant back-and-forth negotiation of terms between the parties, often require a significant investment of time and volume of communication.

Issues To Consider When Using Standardized Contract Forms

Oftentimes, contracting parties will find that there are important terms contained in the standardized forms that are not set forth in sufficient detail, such as provisions addressing the change order process, defining substantial completion and final completion of the project, memorializing the parties’ waiver of jury trial, or providing for payment of prevailing-party attorneys’ fees. These terms may require substantial negotiation and revision in order to curtail litigation and to protect the integrity of the project.

Drafting parties should pay close attention to provisions providing for liquidated damages–or the amounts that the parties are willing to be liable for at various stages of construction if work on the project is not timely completed. These amounts can be difficult to establish in court if a default in performance ultimately occurs. Moreover, the parties should agree that there will be consequences if the project falls behind schedule, which will provide both a strong incentive for timely performance and critical protection against untimely delivery.

This advice is reasonable, though if you talk with general contractors who see massive “supplementary conditions” loaded onto the contracts, and other changes in the standard contract form, they cringe. Often there is an effort to transfer risk from the owner/developer to the contractor. In some cases, these changes are justifiable, but in others, they skewer the open bidding process and reasonably might deter some well-qualified contractors from bidding the work. This has the double effect of increasing costs and, perhaps more seriously, increasing project risk — as the contractors who accept the less-than-perfect language, in putting themselves at risk, might well fail.

Nevertheless, I can see the reasoning for blog writers Jeremy C. Sahn and Adam F. Haimo – Bilzin Sumberg to make the case for thoughtful contract review and revisions to standard text contracts. And I think you will find many other gems of legal thinking and insight in this well researched and frequently updated blog.

(One minor, and easily corrected, problem:  I noticed comment spam on the blog’s “About” page. Bloggers realize that misguided SEO “experts” and scammers routinely try to populate blogs with comments — absolutely useless activity, and quite easily blocked with readily available software.)

Nominations for the 2014 Best Construction Blog competition close on January 31. You can submit your nomination here. Voting commences on February 1.

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