Virginia Construction Lawyer

Talking Mediation at AEC Forensics

Thank you to my friend and relatively frequent guest poster here at Construction Law Musings, Brian Hill (@aecforensics) for letting me invade his great blog on risk management and best construction practices,, and talk about one of my favorite topics, mediation. As I have said on many an occasion, mediation is often the most efficient and cost effective way out of a bad situation (read: construction claim). I share these thoughts in more depth over at Brian’s blog. Here’s a taste: Whether your dispute is big or small, has to do with interpretation of your, hopefully well drafted, construction contract or the allegedly poor quality of the work, or any other reason why a payment dispute (and in commercial construction, it is always some form of payment dispute), mediation is almost always a good option. Remember, litigation and arbitration are expensive and even if you win, your construction business will take a hit, mainly because you cannot and should not budget for..

Reminder: Your Accounting and Other Records Matter

Originally posted 2015-06-30 10:39:36. Republished by Blog Post Promoter Lean accounting (Photo credit: Wikipedia) Recently, I’ve posted on mechanic’s lien changes, mediation and other more “legal” topics here at Construction Law Musings. Today’s post is a practical one and one that will help your friendly neighborhood construction attorney greatly should a dispute arise. The tip for this week? Keep clean accounting and other records by construction job and in an organized fashion. This tip seems like a simple one, but I run into situations where the accounting on jobs, contracts, invoices and other key documents for a project are either missing or haphazardly kept. In the best of these cases, I have to spend additional time (read attorney fees) to attempt a recreation of the job costs and flow of the project. In the worst, I have had to either release or avoid filing what could have been a valid mechanic’s lien because timing could not be determined from the records. I also thank my ..

Resolve to Say “No” This Year

Originally posted 2016-01-11 09:19:39. Republished by Blog Post Promoter (Photo credit: Wikipedia) We hear all of the time how to “get to ‘yes'” and how doing so can lead to more business and of course more business leads to more profits. Purely logical, right? Without construction owners with work for general contractors to perform and general contractors hiring subcontractors to perform that work, construction grinds to a halt and clients and friends of mine in the construction industry don’t make money. For this to happen, “yes” has to happen more often than not. So, why the title of this post? Chalk it up to spending much if not all of my time as a construction attorney either anticipating or dealing with the Murphy’s Law ruled nature of the construction world or to the “Monday morning quarterback” nature of my profession, but I see numerous instances where not taking the job or signing the bad contract would have led to a better outcome than performing the work. What do I me..

With VA Mechanic’s Liens Sometimes “Substantial Compliance” is Enough (but don’t count on it)

The Supreme Court of Virginia Building, adjacent to Capitol Square in Richmond, Virginia (Photo credit: Wikipedia) Virginia mechanic’s liens are a powerful and tricky beast that in most cases require absolute precision in their preparation. However, an interesting opinion recently came out of the Virginia Supreme Court that may provide a bit of a “safe harbor” from the total form over function nature of a mechanic’s lien. In Desai, Executrix v. A.R. Design Group Inc., the Court considered a lien memorandum that had what could be described as technical flaws in the preparation of the mechanic’s lien by A. R. Design Group. The basic facts are that A. R. Design Group used the form of lien found in Va. Code Sec. 43-5 (also found as Form CC-1512 at the Virginia Judiciary website) when it recorded two lien memoranda for two pieces of property owned by a trust. Relating to one of the two properties, the memorandum failed to identify the “Owner” as the trustee of the trust. On the memoranda r..

Sometimes Adjustments are in Fact Equitable- A Story of Differing Site Conditions

Originally posted 2011-09-12 09:00:16. Republished by Blog Post Promoter Image via Wikipedia Remember the one about differing site conditions? (just kidding, that was never a joke). However, any site contractor knows that these differing conditions can be the bane of its existence. Recently, the Danville, Virginia Division of the Federal District Court for the Western District of Virginia weighed in on the differing site conditions debate. In the case of Haymes Brothers Inc. v. RTI Int’l Metals Inc. the Court interpreted a clause in a contract allowing for an “equitable adjustment” to the contract price in the event that the soils were of a different “type” than those known to the subcontractor at the time of its bid. The basic facts are these. Haymes Brothers bid for site work and later found boulders and other conditions in the soil that significantly increased its costs to perform the excavation and site work. Of course, Haymes asked for an equitable adjustment to its original c..

Be Sure to Dot All of the “I’s” and Cross the “T’s” in Virginia

English: Logo of the SCC eFile website. (Photo credit: Wikipedia) As a construction company from outside of Virginia that wants to work here in the Commonwealth, there are numerous “hoops” that you need to jump through to be able to perform work and most importantly get paid. Among these are obtaining a Virginia contractors license, find a registered agent here in Virginia, hopefully find a local construction lawyer to help with your contracts, and (the subject of this post), register with the Virginia State Corporation Commission for the authority to do business in the Commonwealth of Virginia. Aside from it being a requirement of state law, the real world consequence of failing to register to do business is that, while you could file a lawsuit to enforce a claim (such as a mechanic’s lien), failure to register could cost you the ability to enforce or obtain any judgment on that lien. In other words, you could go through the costly litigation process, “win” and then be barred from an..

Don’t Forget to Mediate the Small Stuff

A simple statistical mediation model. (Photo credit: Wikipedia) It’s been a while since I talked mediation here at Construction Law Musings. Those that read regularly (thanks) have likely missed my musings on the topic. Those who read this construction blog regularly also know that I am both a Virginia Supreme Court certified general district court mediator and a huge advocate of mediation as a method to resolve construction disputes. While many of us think of mediation as a method to resolve the major disputes or litigation that occasionally rear their heads in the course of running a construction law practice or construction business, my experience as both a construction attorney and a mediator has taught me something: mediation works for all sizes of cases. As an advocate for my construction clients, I know that proper trial preparation requires the same diligence and attention to detail for a smaller case as it does for a larger case. While a smaller case in the Virginia general ..

Update: New VOSH Maximum Penalties as of July 1

As those who read Construction Law Musings know, as a construction attorney, I want to assure that not only are my clients successful in their litigation/dispute resolution endeavors, but that they stay out of trouble. I take my problem solving and advising roles quite seriously. As part of this role as advisor, I want to let those that read Musings know that as of July 1, 2017 the Virginia Occupational Safety and Health Administration increased their maximum penalties for safety violations. The new maximum fines are as follows: Type Violation Old Penalty New Penalty Serious or Other-Than-Serious $7,000 $12,471 Willful or Repeat $70,000 $124,709 Failure to Abate $7,000/day Unchanged Criminal or Willful $70,000 Unchanged As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings. © Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license. Send to Kindl..

Construction Mediation (Often) Isn’t About Money

Originally posted 2013-09-30 14:03:15. Republished by Blog Post Promoter Diagram of the wikipedia dispute resolution processes and realted procedures (Photo credit: Wikipedia) Did the title of this week’s Musings get your attention? I hope so. If it didn’t, maybe I should say it again. Mediation (often) isn’t about money. I know, you thought that the bottom line in litigation or other dispute resolution (particularly in the construction field) was money. Before I added “construction mediator” to the services that my firm provides, I thought so too. In my role as a construction litigator and counselor for and to contractors and subcontractors, the rules of the road required a focus on the contract (because that determined the basic rules), what work was done and who owed (or would owe) money. I knew that, if the matter got to court, only a limited number of the facts and circumstances that lead to the dispute would be relevant. I also knew that, for the most part, the emotions, previo..

Thank You to Virginia Super Lawyers

Originally posted 2011-06-22 10:00:12. Republished by Blog Post Promoter Thank you to all of my peers and those at Virginia Super Lawyers for nominating and electing me to the Virginia Super Lawyers Rising Stars for 2011. I am particularly honored because this puts me in a group of only 2.5% of lawyers in Virginia. I am truly honored to be a part of this list. Add this honor to my election to the Virginia Business Legal Elite in Construction Law and 2010 has been a great year for my new firm! The full lists of Virginia Super Lawyers and Rising Stars will appear in the July edition of Richmond Magazine. Please check it out. Thanks again to all of you who participated in my nomination and election. As always, I welcome your comments below. Please subscribe to keep up with this and other Construction Law Musings. © Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license. Send to KindleRelated Musings:Thank You f..

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