Notes from the Editor

• Author: By Lauren Catoe
• Pages: 3-3

THE CONSTRUCTION LAWYER

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.

NOTES FROM THE EDITOR

NEWS FLASH!

Exciting

changes coming

to how you

can access The

Construction

Lawyer moving

forward. Read

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