Construction Owners & Builders Law Blog

The Real Estate and Construction Blog  summarizes a Califonia appellate court recently held a "continued performace clause" is not enforceable when the owner commits a material breach.

For lawyers, maybe so, says Professor Peter Henning in an article for the Notre Dame Journal of Law and Ethics.

A California appellate court decision banning "binding mediation" is discussed over at May It Please the Court.

The Court will decide whether its earlier decision in State Farm v Campbell (i) mandates a reasonable ratio between compensatory and punitive damages when the defendants conduct was outrageous and (ii) prohibits the jury from considering the harm done to persons other than the plaintiff in making its award.

Make the arbitration clause one-sided and give yourself, but not the other party, a way to opt out and the clause is unenforceable according to a recent ruling by the Wisconsin Supreme Court.

The provisions of the Act are summarized and linked to over at Construction Lawyer-Utah.

Marc Mayerson over at the Insurance Scrawl does his usual masterful job discussing recent case law on when late notice results in forfeiture of insurance coverage.

I've joined the debate over the wisdom of the paperless office over at The Illinois Trial Practice Weblog.

Under the federal Contract Disputes Act, a construction contractor seeking to overturn a contracting officer's final decision must either file a notice of appeal to a board of contract appeals within 90 days of the decision or file a complaint in the U.S. Court of Federal Claims within a year after the decision.

The Times-Picayune presents an amazing animated graphic showing the time line for the levee failures and flooding in New Orleans during Katrina.

Punitive damages sometimes are awarded in construction claim cases and often awarded in insurance bad faith cases so I note with interest that yesterday the Oregon Court of Appeals overturned a $100 million punitive damages award in a tobacco case.

Point of Law Forum points to an article indicating other states are unlikely to follow Rhode Island's lead.

The ContractsProf Blog summarizes an appellate decision holding the trial court erred in allowing the jury to decide the intent of an unambiguous one year warranty of materials and workmanship.

Next time a client complains about a construction expert's fees and expenses, I'm going to send him or her a copy of "Expert Witness Industry Booming" from the Star-Telegram.

The presentation of construction claims sometimes suffers because not enough attention is given to whether the claim holds together logically.

That's what the Chair of the Ad Hoc Committee on Terrorism-Resistant Buildings (TRB) of the International Code Council suggested at a recent Washington meeting reports ENR.com

Mike Wallace's unqualified rating took me by surprise. He is a fine man and an outstanding lawyer, and I say that though politically we come from different places.

Day on Torts summarizes changes to the Federal Rules of Evidence that will go into effect on December 1 unless Congress overturns them.

The trial judge in the Rhode Island lead paint case cited the Rhode Island Attorney General for civil contempt and ordered him to pay a $5,000 fine reports the WSJ.com's Law Blog.

I am presently prosecuting a civil RICO/ business tort case in which one of the key issues was the contents of the defendant's web site in 2004.

Professor David Bernstien claims in a Point of Law Forum Post the federal rule governing expert evidence is stricter than Daubert and its progeny are; Blog 702 says Bernstein doesn't get it.

Jurors competently deal with expert evidence according to research articles cited at the Trial Advocacy Blog.

The ContractsProf Blog points to a contract damages flowchart prepared by Profesor Tom Bell for his law students.

That's the practical effect of a California appellate decision upholding a zoning ordinance barring "big box " retail stores. Read the summary over at the Real Estate and Construction Law Blog.

Not in Delaware!

The limits of peer review of articles and research relied upon by experts is discussed in today's New York Times (free subscription required).

Whatever the trial court decides about your expert "in the exercise of its sound discretion" is likley to stand up on appeal at least in federal court.

Depeche Mode on contracts psoted at ContractsProfBlog.

leads to?

The New York Times reports prosecutor Sean Berkowitz made a nationally known trial consultant's woodshedding skills an issue in his cross examination of Jeffrey Skilling.

Blog 702 reports on a recent federal appellate case affirming exclusion of a physician's opinion that toxic mold caused plaintiifs' respiratory illness.

The Washington Supreme Court joins the Mississippi Supreme Court in holding that damages for the diminished value of property as well as cost of repair damages may be recovered for construction defects.

Professor Suja Thomas argues it is in a provocative article scheduled for publication in the Virgina Law Review. Link

The Clements "knew something was wrong the November day in 2003 they moved into the Airmont home, which they first saw in August and purchased for $430,000. The windows in the front of the house were so fogged up the Clements couldn't see out of them..."

The public, lawyers and jurors see jurors as passive vessels for each sides stories and evidence. The recent jury verdict against lead paint manufacturers explodes that myth.

Here's the story from the Wisconsin State Journal.

The ContractsProf Blog discusses whether potential business insolvency constitutes grounds for an injunction in a breach of contracts case.

Is the building or your lousy job the cause of your headache, cough, dry eyes, fatigue, rashes, sore throat, and wheeze?

A most excellent post over at Creating Passionate Users.

Peter Nordberg over at Blog 702 posts on whether the Daubert standards for scientific expert testimony should be applied to engineering testimony on defective product design.

Thanks to the Online Guide to Mediation for providing us with a directory of alternative dispute resolution blogs.

How good are you at it? To see, check out the links to eye opening tests over at the Online Guide to Mediation.

Read all about it in USA Today.

Check out this report on how the USDA is using satellites to monitor farmers for false crop insurance claims. Could they be used in construction cases? You betcha!

Construction consultant William Langton posts on what law governs when a construction dispute is decided by international commercial arbitration.

The U.S. Court of Appeals for the Fifth Circuit held last month that the existence of a written agreement to arbitrate may be proven by testimony if the agreement itself cannot be found. Link

Kathy Sierra's posts over at Creating Passionate Users almost always strike a responsive chord with me. She's done it again with a "Crash course in learning theory."

Construction lawyers write a lot of letters, motions and briefs. We learned in legal writing 101 if we didn't learn it in freshman english we should write most of our sentences in the active rather than passive voice? But how do we tell the difference?

The Supreme Court is being asked to decide: "May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party's case is pending, cast the deciding vote in that party's favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?"

The InHouseBlog points to an article of some of the e-discovery considerations corporate counsel should consider before suit is filed.

The Online Guide to Mediation posts on research suggesting avoiding loss influences our choices more than maximizing gain.

As a follow up to my recent post on jury research, read Clay Conrad's criticism of the misinformation the public is given about jury selection over at Jurygeek and my comment about "deselection" of jurors.

Amazing Firms Amazing Practices points to legal service maven David Maister article characterizing lawyers as either transactional experts or beloved advisers.

Washington Construction Law posts on a case holding arbitration awards are not final judgments and, therefore, do not accrue interest.

Check out these articles at Trial Behavior Consulting on juror attitudes and trial tactics in cases involving toxic mold , construction defects, insurance coverage, insurance bad faith and insurance company witnesses.

Houston based Williams Brothers Construction Company agreed to pay the federal government $3 million to settle False Claims Act and administrative claims for knowingly violating Disadvantaged Business Enterprise contracting requirements on federally funded highway projects.

Point of Law points to a PrawfsBlawg post by David Hoffman explaining the use of "Allen" or "Dynamite" jury instructions telling jurors to continue deliberating even though they report being deadlocked.

Robert Ambrogi's LawSites points to the annual Gallup poll rating the honesty and ethical standards of professions. Lawyers and building contractors rated near the bottom.

The Online Guide to Mediation lists construction law blogs including yours truly.

The Illinois Trial Practice Weblog points to Wickilaw and Wex both of which aim at the whole of the legal universe and to the Katrina focused Lousiana Law blog Ernie the Attorney is promoting.

Washington Construction Law links to the story.

InhouseBlog points to a "how to" article that will keep you out of legaL hot water.

Not if the defective product is EIFS cladding sold in South Carolina.

Read about this new game over at the Online Guide to Mediation.

The InhouseBlog points to Wex--a collaboratively-created, public-access legal dictionary and encyclopedia--sponsored by the Legal Information Institute at CornellLaw School.

Washington Construction Law points to McMilkle v Lang, a Washington appeals case holding the economic loss doctrine does not bar an owner from suing a subdivision developer and engineer for economic losses caused by defective construction.

When a witness's deposition testimony is presented at trial, is it better to play the jury a video of the witness testifying or to have a stand in read the witness's testimony?

The Construction Contractor's Digest explains the difference between these terms and the formula for calculating each.

Want a demographic snapshot of the potential jury pool or compare the panel you drew to the relevant population base to see if its skewed? Want to see what kind of housing predominates around a prospective juror's address--without a drive by?

Marc Mayer over at Insurance Scrawl discusses focus group research suggesting the lowering of expectations of jurors as to appropriate insurance company conduct.

Arnie Herz over at Legal Sanity points to a new "must read" book by negotiation gurus Roger Fisher and Daniel Shapiro entitled, Beyond Reason: Using Emotions as You Negotiate.

"Mississippi Burning" Trial

Here's a list of standard deposition topics and questions compiled by Evan Schaeffer at his The Illinois Trial Practice Weblog.

If your goal is to defeat a construction claim, you want the judge or jury to picture the claimant's burden like this:

Here's a checklist of basics courtesy of the Tennessee Business Litigation Blog.