Baker Law - Design & Construction Counsel

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Jeremy Baker

Latest from Baker Law - Design & Construction Counsel

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The AIA’s 2013 Digital Practice Documents play a prominent – yet little understood – role in the AIA’s newest Contract Documents. While previously optional, Digital Practice Document use is now expressly required by the unedited standard form language of the Owner-Architect Agreement (B101-2017), Owner-Contractor Agreement (A101-2017), General Conditions of the Contract for Construction (A201-2017), Contractor-Subcontractor Agreement (A401-2017), Architect-Subconsultant Agreement (C401-2017), and other AIA contract forms. This post identifies the AIA’s Digital Practice Documents – the E203-2013, G201-2013, and G202-2013 – and describes practical considerations for their use. 
The Digital Practice Documents
Most people in the design and construction industry are…
Continue Reading Understanding The New Role of the AIA Forms Digital Practice Documents

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The AIA’s “new” B101-2017, the latest version of its flagship Owner-Architect Agreement, carries over concepts from its widely-used predecessor, B101-2007. Users of the 2007 form will find the 2017 revision familiar. But the new B101-2017 is different in important and subtle ways, and some of its changes may be controversial. Architect and Owner users of the B101 form may, therefore, wish to reconsider and refresh their contracting strategy for the next decade.
Biggest Change: Mandatory Digital Practice Document Use
The B101-2017 and other 2017 AIA B101 Contract Documents require use of the AIA’s 2013 Digital Practice Documents (unless that requirement…
Continue Reading Business Considerations for Owners and Architects Regarding AIA B101-2017 Documents

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Written by Jeremy S. Baker –

Dispute resolution clauses in contracts should be drafted to promote the negotiated resolution of disputes in a fair, timely, and cost-effective manner before the parties must resort to binding dispute resolution methods, such as arbitration or litigation, which are expensive and hurt business relationships.

This article summarizes considerations for drafting contractual dispute resolution provisions.

Continuation of Work During Dispute

Purchasers should consider inserting dispute resolution clauses to require vendors to continue to provide goods and services while a dispute is pending. This can help to avoid further exacerbating the dispute and the issues to…
Continue Reading Considerations for Drafting Contractual Dispute Resolution Provisions in Chicago

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Someone once told me Illinois mechanics lien claims are the second leading cause of legal malpractice claims in the State of Illinois. I do not know that to be true. But it is easy to believe.
In fact, I intended to title this post “1,001 Ways to Screw Up an Illinois Mechanics Lien Claim.”
No foolin’ – this tome is not even close to an exhaustive list of ways to get it wrong.
I just ran out of time… so 101 ways to defeat Illinois mechanics lien claims it is!
Don’t Be Fooled: Illinois Mechanics Lien Claims Are Complex
The…
Continue Reading 101 Ways to Defeat – or Screw Up – Illinois Mechanics Lien Claims

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Portions of this post first appeared in “Article 8, Time,” Chapter 8 in The 2017 A201 Deskbook, American Bar Association (ABA) Forum on Construction Law (2017), co-author Jeremy S. Baker
Benjamin Franklin famously quipped “lost time is never found again.”
While building projects can be accelerated to recover lost time, this aphorism reveals a truth of the construction industry: proper time and schedule management can mean the difference between success and failure on many design and construction projects.
Delay-Related Cost and Schedule Claims: A Good Way to Lose Your Shirt
Commercial projects can be time sensitive. Project owners and real…
Continue Reading They Don’t Call It the “Critical Path” For Nothing: Delay-Related Claims For Extra Time and Money

On April 22nd, Jeremy taught a two hour Construction Specifications Institute (CSI) Chicago course, entitled “AIA Document A201-2017: Understanding the General Conditions of the Construction Contract,” for CSI members who seek the Construction Documents Technology (CDT) certification. The CDT certification provides a comprehensive program of study for anyone seeking to enhance and demonstrate knowledge of writing, interpreting, enforcing and managing construction documents.
ACCESS SLIDE DECK HERE
Continue Reading AIA Document A201-2017: Understanding the General Conditions of the Construction Contract

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On April 14, 2021, Jeremy will present “Seeing the Big Picture: Best Practices for Contracting and Risk Management” in the Construction Management Association of America (CMAA) and American Bar Association (ABA) Forum on Construction Law. This presentation focuses on how you can protect your project with carefully crafted contract requirements and a better understanding of construction insurance. The link to Jeremy’s Slide Deck is below.

ACCESS SLIDE DECK HERE
Continue Reading Seeing the Big Picture: Best Practices for Contracting and Risk Management

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Some of the scariest risks I have helped clients address – in terms of potential claim value, meeting exacting performance requirements, and the inability to transfer risk by contract – relate to “accessibility standards,” like Americans with Disabilities Act (ADA) and Fair Housing Act (FHA). 
Some of the largest dollar value claims I have defended – setting aside those arising from “mega projects” costing north of $500M to $1B-plus, which throw off enormous claims due to the sheer dollars involved – have involved defending clients from allegations of ADA and FHA violations.
The Big Misconception: Liability for Accessibility Claims is…
Continue Reading Helping Clients Comply with Accessibility Requirements: Lessons from the Trenches

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This post is about “designing” the web of contracts for design and construction projects. That web is called a “project delivery method,” and there are many ways to engineer that web of contracts.
The article is not about claims or disputes. Not overtly, at least. It does, however, have a decided “dispute resolution” overtone because good project delivery methods and contracts can minimize disputes.
Good Project Design Can Minimize Design and Construction Disputes
My suspicion? If you conducted a “post-mortem” on most protracted design and construction claims, I bet you could trace the problem which led to the claim back…
Continue Reading Project Delivery Methods for Design and Construction: More Than You Ever Wanted to Know

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A version of this article first appeared in the Construction Law Newsletter, Volume 34, Number 3 (January 2018), coauthors Paul M. Lurie and Jeremy S. Baker

Want to Resolve Design and Construction Disputes Quickly?
Clients have spoken, and their in-house counsel, lawyers, and mediators now understand that clients want their disputes resolved quickly — faster than they typically are in traditional mediation and arbitration. Most construction and commercial disputes settle and are not adjudicated. Early settlements reduce expenses and save time that clients would rather devote to their businesses. Early settlements also reduce the uncertainty inherent in litigation and arbitration…
Continue Reading How Guided Choice Mediation Achieves Earlier Settlements of Design and Construction Disputes

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Private arbitration has several advantages over litigation in a court of law. One is that arbitration takes place mostly in private. Unlike litigation, which is conducted in public and leaves behind publicly-available records, arbitration typically does not leave behind a public record of filings which could embarrass the parties involved in the dispute.
Arbitrators Know Design and Construction
Arbitration enables parties to use expert decision-makers familiar with construction industry norms to resolve their disputes. Construction arbitrators are typically knowledgeable about construction law and practice and are more likely to produce high-quality decisions than most judges. Most judges are “generalists” who…
Continue Reading Advantages of Private Arbitration Over Public Court Litigation

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The choice between arbitration and court litigation complicated. Arbitration is no panacea. Some disputes are definitely better suited to litigation in a court of competent jurisdiction than arbitration. However, Illinois courts and law are no longer hostile to arbitration, and recognize its many advantages.
Illinois law and Illinois Courts Favor Arbitration.
Our Supreme Court has characterized arbitration as “an effective, expeditious, and cost-efficient method of dispute resolution.” Salsitz v. Kreiss, 198 Ill.2d 1, 761 N.E.2d 724, 731, 260 Ill.Dec. 541 (2001). Illinois public policy favors arbitration because it “promotes the economical and efficient resolution of disputes.” Phoenix Insurance …
Continue Reading Courts Often Favor Arbitration Over Litigation

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There are good reasons for real estate developers and project owners to prefer a “Fixed Fee” approach over a “Cost-Plus-Fee-up-to-Guaranteed-Maximum-Price (GMP)” approach to paying for construction work. But Cost-Plus GMP Contract Agreements have many virtues as well.
Which is best? There is no one correct answer.
Much depends on the project-specific goals. What does the developer or project owner most highly value? Speed of project delivery and firm pricing are, for example, often in conflict.
There are big differences between the Fixed Fee and Cost-Plus GMP approaches. Usually, when I get involved in a project, I will have a strong…
Continue Reading Fixed Fee v. Cost-Plus GMP: Which is Best?

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Admission to the Society of Illinois Construction Attorneys (SOICA) is by invitation only. Its ranks include distinguished former judges, highly regarded mediators and arbitrators, and attorneys who are widely considered to be at the top of the Illinois construction law bar. 
“Joining SOICA has been an important goal of mine for 15 years,” says Jeremy. He is “excited to continue to work with the SOICA members – the highest caliber construction attorneys in Illinois – who have been my friends and mentors for many years.”
SOICA encourages “the association of outstanding Illinois lawyers who are distinguished for their skill, experience…
Continue Reading Jeremy Baker inducted into the prestigious Society of Illinois Construction Attorneys

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The very act of two project participants coming together to thoughtfully negotiate a design and construction contract has a benefit unto itself – one that is separate from the piece of paper produced at the end of the contract negotiation.
Speed and Efficiency
When I negotiate contracts, my goal is to complete the negotiation quickly and efficiently. 
My clients want to design and construct new buildings, not get bogged down in contract negotiations. 
I love to send the “happy” email to my client that says, “here is the signature copy of the contract – we are done.”
The Hidden Benefit…
Continue Reading The Hidden Benefit to Thoughtful Contract Negotiations