Notes from the Editor

• Author: John Foust
• Pages: 3-3

THE CONSTRUCTION LAWYER 3Fall 2020

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