Notes from the Editor

AuthorBy Lauren Catoe
3Volume 42 Issue 3
Published in
The Construction Lawyer
, Volume 42, Number 3. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
changes coming
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Lawyer moving
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Chair Wm. Cary
Wright’s column on
page 4 for details.
At the outset of a construction
project, the parties performing
on the project typically hope for
the best outcome: a successful
project that is completed on
time and within the budget,
with no unresolved claims or
issues at the end of the job. As
construction lawyers, we know
this does not always happen. The times when something
goes wrong between one or more project participants are
often the times when our clients need our counsel. This
issue of The Construction Lawyer includes articles that
are pertinent to some of the key issues we have to con-
sider in those scenarios–things such as contractual rights,
available remedies, and avenues for obtaining relief.
The rst article in this issue, “Dissecting Contract
Breach Terminology, Warranties, and Remedies: Part
One,” was written by Professor Jeffrey P. Aiken and Dylan
C. Ochoa. In their article, the authors discuss the de-
ciencies and issues resulting from contract jurisprudence
that has typically classied breaches of contract as either
“material” or “immaterial.” This either/or approach to
the characterization of contractual breaches has led to
inconsistent applications of the “material” or “immate-
rial” distinctions when applied to circumstances that do
not squarely t into one or the other. In addition to the
“material” or “immaterial” approach, Aiken and Ochoa
discuss other approaches courts have implemented to dis-
tinguish between different types of contractual breaches
and then assign a remedy or remedies to each of the
different types of breach. However, when applying each
of the approaches discussed to potential scenarios, the
authors uncovered inconsistencies or nonsensical results,
which seemed especially evident in the context of pro-
cess-oriented contracts and/or situations in which the
contracting parties’ performance is interdependent. The
good news is that there is a part two of this article, which
will be featured in the next issue of The Construction
Lawyer. In part two, Aiken and Ochoa will discuss how
“construction contracts should be viewed as a prism for
correcting the skewed vision of contractual breach as a
binary choice” —so after reading part one, be sure to stay
tuned for part two!
In “Protecting Your Company’s Rights to Performance
and Payment in the Bankruptcy Context,” David J. Theis-
ing, Marilyn Klinger, and Robert J. Berens provide us with
a nice overview for obtaining performance and payment
on a construction project when a party on the project has
gone bankrupt. As the authors note, “[b]ankruptcy in the
construction context presents a special set of consider-
ations and action items for actors on both the upstream
and downstream sides of the entity entering bankruptcy.”
Because of this, it is imperative that our clients retain
experienced bankruptcy counsel to assist them when a
project party les bankruptcy. However, as construction
lawyers, it is helpful to have a basic understanding of key
concepts regarding a bankruptcy ling (such as creation
of a bankruptcy estate and the trigger of an Automatic
Stay), issues that our clients may encounter after a proj-
ect party les bankruptcy, and strategies for our clients
to consider prior to a bankruptcy ling by a project party.
While alternative dispute resolution is a topic that is
often covered in the pages of The Construction Lawyer,
the nal article in this issue is a unique one. In “Com-
paring Theory And Practice: Survey Results of What
Attorneys and Arbitrators Want in Construction Media-
tion and Arbitration,” authors Dean Thomson and Julia
Douglass provide us with insight into: (i) what construc-
tion lawyers want from mediators and whether mediators
are meeting those demands; and (ii) how construction
arbitrators conduct their arbitration proceedings and
make decisions. This insight is provided based on survey
responses of over 330 construction lawyers and over 220
construction arbitrators, and because of that broad per-
spective, the article is a very interesting read.
As construction lawyers, we know that projects do not
always go as planned. I am condent that most of us
have been engaged by a client in connection with one or
more of the topics described in this issue’s articles, and
I hope you nd each of the articles as informative and
useful as I do.
Lauren Catoe
By Lauren Catoe
3 3 7/18/2023 1:52:05 PM7/18/2023 1:52:05 PM

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