Baker Law - Design & Construction Counsel

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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

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

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

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Design professionals must comply with a variety of federal, state, and local statutes, rules, and codes that require certain public and commercial buildings to be designed in a manner so they are readily accessible to, and usable by, persons with certain kinds of disabilities.
Accessibility Requirements
Such “accessibility requirements” address things like ensuring persons in wheelchairs have accessible routes into buildings; that doors are designed wide enough to allow their passage; that light switches, thermostats, and electrical outlets are within their reach; and that kitchens and bathrooms include features, and are laid out in such a way, that an individual…
Continue Reading Accessible Design Requirements: Worthy Aims, Huge Risks for Design Professionals

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Mechanics liens are a powerful tool to help secure payment on Illinois projects. In turbulent economic times, liens can be particularly useful to architects, engineers, and contractors concerned about their clients’ willingness – or ability – to pay for design and construction services. Liens can sometimes motivate project owners and lenders to pay for design and construction services. Claimants who meet certain short deadlines, and make technical filings with correct content, can often receive favorable treatment under the Illinois Mechanics Lien Act. However, liens are no panacea, and they have potential downside along with their upside.
In this one-hour program,…
Continue Reading Jeremy Baker to Present Seminar “Using Mechanics Liens to Get Paid in the COVID-19 Era” Friday, September 25th

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For years, lawyers and insurance brokers have provided limiting advice to architects and engineers.
The Limiting Advice
Together, we have put architects and engineers in a tiny little box. We advise architects and engineers to stay far away from the means and methods of construction. To not make promises about the outcome of the project. To give no warranties. No assurances about schedule. And to not guarantee construction costs. These are just a few examples. The list goes on and on…
The Negative Impact on Designers
So what is the fallout of this on architects and engineers? It is profound.
Continue Reading Design Professionals Should Not Be Afraid to Lead Design-Build Teams

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There is no virtue in overly and unnecessarily long design and construction contracts. But unduly short construction contracts have no virtue either. Contracts with “gray” areas leave too much open for debate, and this can lead to unnecessary wasteful litigation.

No one specific length is best for design and construction contracts.
Project participants do, however, want to avoid overly short contracts with “gray” areas. The ones which do not address the major issues which may arise in the project.
This is because design and construction contracts exist, largely, to resolve prevent and disputes.
Contracts Are a Dispute Resolution Tool
We…
Continue Reading What Is the Best Length for Design and Construction Contracts?