Lawyer Monthly Magazine - February 2019 Edition

55 Professional Excellence www. lawyer-monthly .com FEB 2019 Can you share ways in which you have seen the construction industry progress over your years of practice, and how this has affected your role? When I first started practicing construction law, I litigated disputes and occasionally reviewed contracts, usually after the fact. I rarely saw my clients’ contracts until there was a dispute. Clients rarely involved attorneys in contract negotiations. That’s changed. Now, I spend more time drafting and revising contracts than litigating claims. On major projects, I’m often deeply involved in negotiating the construction contract. Frequently, I’ll start with standard industry form contracts and adapt them for my client’s needs. I also prepare contracts and subcontracts for general contractor clients to use in their routine operations. In the context of claim analysis, I see parties bringing business judgment to bear as they analyze the strengths and weaknesses of their claims/ defenses, and the likelihood of an ultimate recovery. As a result, I’ve seen clients decide to walk away from multimillion- dollar claims. That cautious approach to the claims process translates into clients being receptive to inclusion of early mediation and other alternative dispute resolution provisions in their contract documents. LM the action is filed, the lien claimant must record a Notice of Lis Pendens with the County Recorder. Failure to do so is fatal to the lien claim. In what other ways can contractors protect themselves from potential litigation? First, contractors should get lawyers involved in drafting and negotiating construction documents. Disputes are inevitable, and no contract is perfect, but contractual terms can facilitate early resolution of disputes without the need for litigation. Secondly, contractor personnel need training regarding important statutory provisions, contractual terms and procedures. Third, contractor personnel need to understand the importance of regular communication and documentation throughout the construction process. Change orders must be in writing. Accurate daily reports should document subcontractor manpower, construction activities, weather events, and events that impact the schedule. Emails can confirm informal verbal agreements and document important project events. Project documentation won’t necessarily prevent litigation, but when litigation can’t be avoided, project documentation can impact the outcome. CONTACT MICHAEL S. DULBERG Shareholder, Burch & Cracchiolo E: mdulberg@bcattorneys.com T: 602-234-9905 www.bcattorneys.com About Mike Dulberg My name is Michael Dulberg. I’m a construction lawyer with Burch & Cracchiolo P.A. in Phoenix, Arizona. I received my undergraduate degree from Columbia and my law degree from Harvard Law School. After law school, I was an Assistant District Attorney in the Manhattan District Attorney’s Office for six years prosecuting violent crime, which provided me with extensive trial experience. I moved to Phoenix in 1984 and joined a small boutique law firm that concentrated on Construction Law, and I’ve been a construction lawyer ever since. In 2000, I joined Burch & Cracchiolo as a partner. My practice focuses exclusively on construction law and construction related litigation. I help businesses and individuals navigate the various disputes that may arise during construction projects. I’ve encouraged clients to involve lawyers in the preparation of contract documents. Fair contracts can reduce litigation risk by providing a mechanism for early dispute resolution. Some disputes can’t be resolved necessitating an adversarial process. I have extensive experience litigating and arbitrating a wide variety of construction issues, including: non- payment claims, liens, delay claims, defects, design issues, bond claims, Registrar of Contractor complaints, and bid disputes. I’ve assisted clients in alternative dispute resolution and litigation for claims of all sizes and complexity. Firm Profile Burch & Cracchiolo, P.A. was founded in 1970 and with its primary office in Phoenix, it remains one of the Southwest’s premier law firms. Our lawyers serve clients throughout the Southwest and nationally in a wide range of practice areas. Burch & Cracchiolo provides outstanding, cost-effective representation that emphasizes client objectives. In order to better serve clients nationally and internationally, Burch & Cracchiolo is a member of Primerus, an international alliance of 170 law firms from 120 cities around the world.