Notes from the Editor

AuthorJohn Foust
Published in The Construction Lawyer, Volume 40, Number 4, Fall 2020. © 2020 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
By John Foust
John Foust is a partner with Ralls Gruber & Niece in San
Francisco, California.
The Future Is Now
E.M. Forester, the British
writer whose novels have all
been turned into Merchant
and Ivory films starring
Anthony Hopkins and Hel-
ena Bonham Carter, was
also something of a futur-
ist. In 1909, he published
The Machine Stops, a story
that imagined a future where
everyone lives alone in iso-
lated cells connected to one
another by “the Machine.” Communication takes place
either by instant message through pneumatic tubes or
by video conference (achieved by looking into a round
plate with backdrops that can be altered at will). We are
told that the “clumsy system of public gatherings has
been long since abandoned.” Instead, people attend lec-
tures, listen to concerts, and visit public gardens by video.
Food and other necessities are called up and delivered by
interconnecting tubes. Is any of this sounding familiar?
As I write, the world is in its sixth consecutive month
of social distancing in response to the pandemic. Depo-
sitions, client meetings, and court appearances are all by
video. One question everyone asks is what will happen
when the pandemic ends. Will everything snap back into
its pre-COVID state like a memory-foam mattress? Will
we go back to the old days when we thought nothing of
taking a six-hour ight to attend a 30-minute hearing? Or
will lawyers, clients, experts, mediators, arbitrators, and
judges become comfortable with practicing remotely?
Considering that lawyers still write letters (albeit ones
promptly converted to PDF and attached to an email),
my money is on the memory foam, but only time will tell.
For this Fall issue, we have gathered four articles that
peer into the future of our industry. In BIM, Blockchain,
and Smart Contracts, Nancy Wiegers Greenwald pro-
vides a detailed analysis of three related technologies
that have the capacity to transform construction con-
tracting. She begins by explaining that BIM, while nearly
ubiquitous in construction design, has yet to realize its
potential because of “a profound disconnect between
contract requirements and the optimal BIM collaborative
process.” Greenwald posits that blockchain technology
(which she thoroughly demysties) and “smart contracts”
can help bridge that disconnect: “By creating a secure
platform for recording project information and providing
a bridge from disparate data environments, blockchain
technology can eliminate the inefciencies in the frac-
tured transfer of information in multiple BIM models.”
When we think of the future, we tend to xate on
scientic advancements. Yet the future can also bring
nontechnological improvements in law and the social
sciences. Andy Ness, a past chair of the ABA Forum on
Construction Law, writes about one such advancement in
his article Neutral Evaluation: Another Tool in the ADR
Toolbox. Ness starts off by noting that cases often fail
to settle because “both sides feel strongly and sincerely
that they have a very strong case.” If that’s true, and most
of us would agree that it is, then the only way to broach
that impasse is by disabusing the parties of their sincerely
held but mistaken beliefs, which is where neutral evalua-
tion comes in. As Ness explains: “A well-designed neutral
evaluation process will yield highly practical, realistic
feedback respecting the relative strength of both sides’
positions and arguments at a small fraction of the cost
of a trial or arbitration hearing.”
For the last two articles, we return to the subject of
technological advancements. In Technology in Construction
Claims Management, Sasha Christian, Ilana Ritvalsky, and
Richard Kalinowski discuss the ways in which new tech-
nology is changing the way that we manage construction
claims. From tablets to drones to machine learning to big
data, the authors discuss practical considerations for imple-
menting new technologies, as well as how to avoid potential
legal liabilities. Finally, Jessica Courtway discusses the
future of AI in construction in her article Wearables, Aug-
mented and Virtual Reality, Integrated Project Delivery, and
Articial Intelligence. Courtway also identies the attendant
legal risks and discusses how those risks are being handled
by courts and regulators.
Ultimately, it is impossible to know whether any of the
advancements discussed here will be become widely adopted
in the industry. As Nancy Greenwald points out, the indus-
try’s adoption of promising new advancements is often
hindered by “a stubborn adherence to inefcient processes
and relationships that is driven by risk aversion.” That’s
true for blockchain, and it’s true for neutral evaluation. As
counselors and consultants, our job is to help by looking
for ways to manage the risks and reminding our clients and
ourselves that, just as indecision is itself a form of decision,
choosing not to adapt carries its own set of risks.
John Foust

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