Man, depositions can be rough on some people. I personally know of situations in which various parties have thrown their laptops down in a temper tantrum, expert witnesses breaking down in tears or faking illness to take more time to prepare, or the time when an infamous developer parked his Ferrari right outside the room where his deposition was being held where he would try to claim he was broke, and have even seen video of a deposition in Texas where a fist fight broke out (Google it – you won’t be sorry…). (more…)

Perhaps because of the requisite remote control making it look and feel like a toy, for some reason people seem to think that drones are just toys. Not that they can’t be a ton of fun — it is just that they can really screw up the already complicated and difficult to understand airspace above our heads.

Consider then the following points:

  1. The FAA has incredibly detailed and complex regulations governing every aspect of flight, right down to the toilets in the lavatory and the screws securing the overhead bins
  2. The FAA has been very vocal about its intent to regulate both recreational and commercial drone operations
  3. You don’t mess with the FAA

I learned this last point firsthand during the ground school portion of my flight training prior to earning my private pilot license. And now it seems that a prominent commercial drone photography operator is learning that lesson as well, according to Digital Trends:

A Chicago-based company that specializes in aerial photography using drones has agreed to pay a $200,000 penalty to settle a case brought by the Federal Aviation Administration (FAA), which had accused it of violating aviation regulations. The figure was a significant reduction on the colossal $1.9 million the FAA had originally proposed.

The company, SkyPan, will also have to hand over an additional $150,000 if it breaks FAA rules in the next year, and another $150,000 if it fails to comply with the terms of the settlement agreement.

The flights at the center of the dispute took place over Chicago and New York City between 2012 and 2014.

The buzz word du jour, Big Data, is now coming to the legal profession. Forbes reports that the old stalwarts LexisNexis and Westlaw are facing some potential disruption from up-and-comer Ravel Law.

Here is some more information about the firm:

Established in 2012 by two lawyers with backgrounds in analytics, they provide services designed to help legal professionals draw insights and connections using advanced analytical algorithms.

One of their services– Judges Analytics – lets lawyers search through every decision made by particular judges to find those most likely to be sympathetic to their arguments. The data is visualized through Ravel’s dashboard in a way that makes it easier to spot connections and opportunities that otherwise would have been missed.

The more things change, in some way, the more things seem to stay the same. One of the constants in my ongoing education as a marketer in the legal industry is the sage advice of Ed Poll’s LawBizBlog.

A recent post of Ed’s tackles the perennial subject of technology’s impact on labor markets. Specifically, as a legal professional, he focuses on the impact of technology on the legal profession combined with the economic climate of the most recent recession. (more…)

As promised, over the coming weeks and months, we’ll be publishing a series of articles gleaned from West Coast Casualty’s 2014 Construction Defect Seminar. This article focuses on one appellate decision that impacts attorneys and specifically, their relationship with expert witnesses.

Presented by Thomas Halliwell, Esq. and Barry Vaughan, Esq.

Somehow, in less than an hour, Halliwell and Vaughan ran through dozens and dozens of appellate decisions. But they didn’t just read off of a list, they added a great deal of context and some occasional comments.

I couldn’t type fast enough to cover these master orators and their insightful observations, but I was able to gain access to some notes that they published to accompany the presentation. Under the category of decisions impacting attorneys, there was just one case.

DeLuca v. State Fish Co, Inc. (2013) Cal.App.4th 671

In this case, a former corporate officer filed suit against the corporation. The initial filing involved real estate claims. The Defendant filed its own claim to rescind the deed to the property in question, and additional claims over violation of corporate doctrine. The Defendant also retained an expert to offer testimony at trial.

According to Halliwell and Vaughan:

The trial court declared a mistrial on the unlawful detainer action and found in favor of Defendant on the rescission and corporate opportunity doctrine claims. The Court of Appeal reversed on the rescission and corporate opportunity doctrine claims, and remanded for trial of the unlawful detainer claim.

Then things got interesting…

For the retrial, the Plaintiff in this case retained the same expert witness that had testified on behalf of the Defendant. Perhaps somewhat surprisingly, Plaintiff’s counsel was disqualified because of the possibility that the expert gave the attorney confidential information.

The case went to appeal:

The Second District Court of Appeal held that the expert witness did not possess any confidential information because once the expert witness was designated a testifying expert, the attorney- client privilege and work product protection were waived as to information conveyed to him by Defendant’s counsel in the prior trial. The Court then found that Defendant failed to establish the rebuttable presumption that confidential information materially related to the pending proceeding was conveyed to the expert witness. The Court stated that even if the information conveyed prior to the expert’s designation as a testifying witness could potentially be covered under the work product doctrine, Defendant failed to show that confidential information was actually conveyed, and moreover, that it was relevant to the pending proceeding.

For even more background on this case, visit FindLaw.


Old and new state office buildings, 350 McAllister St, SF

Image courtesy Wikimedia

As many people know, LEED v4 took a lot longer to be finalized than originally anticipated—largely due to political struggles involving key stakeholders and certain large enterprises. As many of my friends and colleagues know, I despise politics. Therefore, rather than get into all the muck, let’s dig into one of the more controversial subjects in LEED v4, and try to understand its impact on standard of care for the industry

What is an Environmental Product Declaration (EPD)? The always informative Stuart Kaplow has a great description at his blog, Green Building Law Update:

An environmental product declaration (EPD) is a method of quantifying the environmental impacts of a product. It is analogous to the nutritional label on a box of cereal. In the context of green building, EPDs will provide a way describing the environmental impact of a building material or product.

EPDs articulate the conclusions of a life cycle assessment. The aim of an EPD is to facilitate the comparison of the range of environmental effects attributable to a product in order to provide a sound basis for making informed decisions.

Life cycle assessment is widely accepted to encompass 5 stages: raw material acquisition, manufacturing, transportation, use, and end of life.

In other words, an EPD is a third-party assessment of certain material characteristics based upon objective criteria. If manufacturers produce an EPD for a given product, it offers design and construction professionals handy insight into the environmental impact of that product.

How EPDs affect Standard of Care

When we talk about environmental impact, an important part of the equation also involves impact on human health—since we are also part of the environment. One of the components to an EPD is toxicity. This is where things start to get really interesting. There are multiple approaches to assessing toxicity, including certain ISO standards that have been adopted by various European countries. In particular, ISO 14025 is referenced by the USGBC. Unfortunately, that standard was last updated in 2006, making it somewhat out of date in the fast-paced world of high performance design and construction.

As Kaplow points out in another blog post:

Among the loudest critics of the LEED v4 Materials & Resources credits related to EPDs is Perkins+Will architect Douglas Pierce, who authored a White paper, “LEED V4 Should Lead On Material Health Transparency By Accepting Only Environmental Product Declarations (EPDs) That Comply With the Federal Trade Commission’s (FTC) Truth in Advertising Law”. Pierce highlights that EPDs and their use in LEED V4 “have a large loophole related to toxicity”. The White paper argues that toxicity must be detailed or risk violating the Federal Trade Commission Green Guides.

In other words, the standards for defining toxicity related to EPDs still have some work left. The difficulty here is immediately apparent, as architects like Pierce may in effect be forced to make legal interpretations. As Kaplow explains:

The White paper is legally not correct, .. but who would seek legal advice from architects (even a well respected architecture firm like Perkins+Will)? However, the White paper is useful in identifying the shortcomings of EPDs and in particular ISO based EPDs.

Will we need to include legal counsel as part of the design charettes in the Integrative Project Design process? (I actually do think that that is a very wise suggestion.)

Should attorneys be reviewing BIM files and specifications? After all, those do constitute “contract documents” and who better than an attorney to evaluate the merits of a contract? (I think that is a horrible idea – especially at the hourly rates most attorneys charge…)

Moving Forward, to a healthier built environment

Regardless, in my opinion, the best aspect of the whole discussion around objective third-party standards related to Environmental Product Disclosures, is that we are even having the discussion in the first place.

Only through intelligent discourse, backed by evidence, can we move forward to improving both the environmental and health impacts of the products we use to design and construct the buildings in which we live, work, play and come together.


Resources:

The Consumerist’s Chris Morran has a post up about why they believe consumers should always opt out of what they call “forced arbitration” clauses. Here is one of the reasons they give:

Companies want you to arbitrate because the system has been shown to be heavily unbalanced in favor of businesses — who have the legal knowledge, experience, and funding to put up a proper defense — while harmed consumers often enter into the complicated process without legal representation.

Here’s the thing: I’m not a lawyer, but neither is Chris Morran. So neither Morran’s post nor this one should be mistaken as legal advice.

Unlike Morran however, I have been involved in hundreds of legal disputes—most of which involve consumers, typically homeowners. I have been involved with cases that ended in a jury trial and cases that ended up in binding arbitration. At least 95% of the cases I worked on ended up settling out of court, typically as a result of mediation.

When a consumer suffers damages as a result of a defect or poor workmanship, the legal aspects of presenting such a case typically involves a great deal of technical analysis and expert opinion. In most cases, the outcome often depends heavily on interpretation of these technical details.

What most people fail to consider

In a jury trial, it is the jury that must decide the merits of a particular case. As we all know from grade school, juries are made up of “peers” selected at random from the populace. As attorneys will tell you behind closed doors, most juries are made up of people (and this is a direct quote) “too stupid to get out of jury duty.”

Here is the point: If the experts can’t agree on the merits of certain highly technical issues, how is the average citizen supposed to make a determination?

A better option?

In a binding arbitration, my experience has been that the arbitrators are generally more knowledgeable and informed. Every attorney and expert I have worked with prefers arbitration over jury trial—regardless of whether they are representing plaintiff (consumer) interests of defense (business). In fact, some attorneys and experts I know representing consumers report that they typically see awards that are 50% more than what they would expect for similar cases before a jury. Also, the costs for legal fees and expert costs are typically much less for an arbitration than for a jury trial.

Regardless, the key to a successful outcome depends on the attorneys, their staff, their experts, and most importantly, the evidence at hand. The reason most cases I have been involved in have settled out of court is because nobody in their right mind wants to gamble with the unpredictable outcome of a jury trial.

Again, I’m not an attorney, so you should really check with your attorney before making a decision either way.

I have seen some architectural designs that one might consider to be criminal, but requiring all architects to be fingerprinted as part of licensure? That seems a tad extreme.

Starting January 1, 2014, architects who apply for an occupational license in Texas will have to share their fingerprints with the state. Texas House Bill 1717, passed earlier this year, says that applicants seeking a license from the Texas Board of Architectural Examiners must submit “a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information.” The FBI would also have access to all those fingerprints….

So what happens if an architect in good professional standing is revealed to have a minor crime on his record due to being fingerprinted? Could he lose his license, despite the quality of his work? The TBAE absolutely reserves that right. “There are criteria that TBAE Enforcement staff consider in these reviews, and mitigating circumstances include how long ago the conviction was, whether it was related to the practice of the profession, and more.”

Via The Atlantic Cities

Sean Lintow, Sr. of SLS Construction & Building Solutions has an awesome guest post on the future of building codes and green building standards up at Christopher Hill’s always excellent Construction Law Musings. In his article, Sean highlights a few of the leading standards for residential construction:

While many programs have sprung up from this, by far two of the biggest are LEED & ENERGY STAR. As we know they were conceived as a means for builders to build better buildings & they started off with simple roots. As the conversation started to grow & changes started coming about (mainly due to building codes) they had to adopt or be deemed irrelevant.

One of the most interesting statements I recall is one of the founders of LEED saying they looked forward to the day when they might be able to close the doors as the codes & builders simply built “green”. So this begs the question, with all the recent code changes & many more coming (like the 2015 codes requiring a HERS score of 51-55 for residential), where do many of the programs stand & are some of them about to become irrelevant?

Via Construction Law Musings

The concept of the Mechanics Lien is an essential and integral part of the ongoing business of designing and constructing the built environment. Yet the most basic concepts of lien laws are not widely understood — even by those who rely upon them each and every day. To make matters worse, each state is responsible for developing its own lien statutes. In this article, attorney and Zlien CEO Scott Wolfe, Jr. proposes an alternative approach.

Columnist and speaker Gene Marks (@genemarks) published an article on Inc.com recently arguing that the United States needs a national sales tax system, as opposed to a state-by-state system. What about a national mechanics lien law?

Gene’s article makes some interesting points about the sales tax debate, eventually concluding that he “doesn’t want new taxes…[or] a more powerful federal government. [He] just wants an easier and more efficient system.” I feel this highlights a bigger issue.

It’s not just sales tax laws, it’s all types of laws that are extremely fragmented across the United States, causing headaches, impossible compliance requirements, red tape and more for our country.

Is Federalism Hurting The United States?

I understand the benefits and assets of Federalism (the term for a political concept where multiple member governments are bound together by a covenant, like in the United States). The United States has a very rich history in federalism, such that our Constitution reserves almost all governing power to the individual states.

Over the years, the U.S. Congress and U.S. Supreme Court have clearly expanded the role of the federal government. They’ve done this by interpreting provisions of the Constitution very broadly, most notably the infamous “Commerce Clause.” This has driven a political wedge between the parties about the role of the federal government. Should the federal government be making all the rules, or should they leave the rule-making to the states who are closer to their constituents and better understand the needs of their jurisdiction?

Insofar as my personal opinion, I agree with Gene’s statement about not wanting a more powerful government. I really don’t. The concept of Federalism has been proven and has a lot of value. Nevertheless, the world has changed a lot since 1776. It may be time to modernize the Federalism concept, to preserve the principles but remove the red tape.

Letting the states regulate their state is one thing, but we have a serious problem. The economy is not segregated by state, it’s not even segregated by nation any longer. We live in a global economy where doing business across state lines is a fact of life.

Look around your room. Your computer screen has parts from all over the country and is designed by a company based somewhere other than where you live. You’re accessing the Internet using servers all over the world. The chair you’re sitting on is the result of a global manufacturing effort, and it probably crossed seas, mountains and plains before reaching you.

Doing business means jumping from one state to another, or one country to another, but each state has different tax structures, licensing requirements, security laws, manufacturing laws, working laws, wage laws, etc. It’s a compliance nightmare and companies spend an unfathomable amount of money trying to keep up.

How can the United States expect to compete with larger countries who has less and more streamlined regulations? How can the United States expect to keep things affordable within its own borders? The red tape is suffocating.

Mechanics Lien Laws Are An Example of State Regulations That Don’t Make Sense

Zlien’s bread and butter comes from making the fragmented mechanics lien laws manageable for companies, and so it pains me to argue that these laws should be simplified. If they are simplified, it makes it easier for businesses to self-comply.

Nevertheless, these laws present an excellent example of what is better regulated on a federal level.

Mechanics lien laws all come from the same idea; a concept introduced by Thomas Jefferson to the Maryland legislature more than 200 years ago. Thereafter, each state adopted its own form of the laws, and over the past 200 years legislatures have made change after change responding to popular demand or political pressure. The result is a fragmented system of laws that are impossible to understand, and frankly, sometimes don’t make sense.

As an example of this consider the two identical cases we discussed where courts in different states, basing their decision on the same “public policy,” came to complete opposite conclusions: Idaho Mechanics Lien Invalidated By Appeals Court Based on Contractor Registration Technicality.

Another example can be found in North Carolina. Their mechanics lien laws were changed this year, and it’s causing an uproar because the state legislature’s changes contradict their stated purpose and simply cause more problems than they solve. This is why our friend Christopher Hill, a Virginia Construction Attorney, warned that it’s not a good idea to mess with mechanics lien statutes.

Leaving mechanics lien laws to the whim of popular opinion and political pressure is one thing, but leaving it to the those pressures which vary from county to county and state to state has created a regulation monster. The laws in one state are impossible to reconcile with the laws of the neighboring states.

Uniform Laws Are Possible And Do Wonders

An organization focused on this problem is the Uniform Law Commission. This organization finds examples of fragmented laws that don’t make sense, proposes a uniform solution, and then lobbies states to adopt them.

Their masterpiece is probably the Uniform Commercial Code. This is an example of a uniform law that is adopted across the entire United States. As a result of it’s wide consistent adoption, companies can easily and affordably use the remedy.

Uniform laws are possible and the Uniform Law Commission has some successes. Nevertheless, they also have a lot of failures, as getting 50 states to agree on anything is no easy task. An example of such failure may be found in the Uniform Construction Lien Law, which has almost no adoption. Actually, let me say it: no one adopted it. It was completed by the Uniform Law Commission in 1987, and there were crickets ever since.

Constitutional Change Required… And Probably Unavoidable

So the Uniform Law Commission is a great concept, but not very workable. The unfortunate truth is that a constitutional amendment is required to change the role of the federal government to accommodate some of the business and economic realities we now face.

While there is a lot of debate about this and many want to limit the role of the federal government, I feel that the constitutional change is simple inevitable.

The United States will be unable to compete in the global marketplace (much less make money and maintain sanity within its own borders) with the complex patchwork of laws we have. There is a lot of work we have to do to get our ducks in a row and unify our regulations, and the sooner we start, the better luck we’ll have at catching up with the new world order.


About the Author

Scott Wolfe Jr. is the CEO of Zlien, a company that provides software and services to help building material supply and construction companies reduce their credit risk and default receivables through the management of mechanics lien and bond claim compliance. He is also the founding author of the Lien Blog, a leading online publication about liens, security instruments and getting paid on every account.

Scott is a licensed attorney in six states with extensive experience in corporate credit management and collections law, with a specific emphasis on utilizing mechanic liens, UCC filings and other security instruments to protect and manage receivables.

This article originally appeared at the Zlien blog under the title, Mechanics Lien Law: Is It Time For A National Statute?

www.zlien.com

Image courtesy vinotchandar