(And Resources for Construction Lawyers)
By Leslie King O’Neal
Looking Back: Construction Projects and Construction Law Over 50 Years
Last week the ABA Forum on Construction Law celebrated its 50th anniversary by presenting a two-day program on Lessons Learned from the Last 50 Years on Project Execution and Claims Management. Nine plenary sessions covered topics from project planning to change order management as well as the evolution of construction law, ethics requirements and a survey of significant construction projects over the last 50 years.
Looking Forward: Where Do Construction Projects & Construction Law Go from Here?
Chris Noble,[i] Charles Boland,[ii] and Phil Bernstein[iii] discussed how project delivery methods, design and construction have changed over the last 50 years.[iv] The advent of computer-aided design (CAD), Building Information Modeling (BIM), modular construction, IoT[v] and smart buildings, robotic construction, project information management, and 3-D printing have revolutionized design and construction. Owners, designers, contractors, subcontractors and suppliers are already using these technologies. Adding artificial intelligence to these tools may result in structures designed to adjust as the owner’s or occupants’ needs change. The presentation ended with a ChatGPT prototype design for a courthouse of the future.
Six Current & Future Trends
According to Phil Bernstein, these trends are likely to shape design and construction for the next 50 years:
- Infinite data—The explosion of design, construction and project management data will continue.
- Simulation & Prediction—Owners, designers, contractors, subcontractors and suppliers will be able to simulate conditions and predict potential outcomes.
- Cost/time/quality analysis—Having historical project data will allow project participants to evaluate cost, time and quality issues.
- Construction optimization—Contractors will be able to optimize construction means and methods through data analysis
- Robotic construction—Robots and robotic enhancements for human workers will increase productivity and reduce workplace injuries.
- Supersmart building operation—IoT devices in buildings will enhance facility maintenance and operations.
The Challenge: How to Collect, Manage & Use “Infinite” Project Data
Fifty years ago, collecting construction project data for claims or disputes required manually reviewing paper files and folders kept in cardboard boxes. On today’s construction projects, almost all information is exchanged electronically. Electronic design drawings, shop drawings, submittals, schedules, pay applications, scheduling data, photographs and videos, as well as emails, texts, chats, videoconferences and social media postings are used on projects of all sizes. Some companies use project information management software such as Procore or Autodesk Construction Cloud, which integrate with BIM, Primavera, Egnyte, Docusign and other applications. These collaboration programs allow project participants to share, view and modify project data in real time.
Don’t Drown in the Data Lake
Phil Bernstein said construction projects are now “swimming in data.” Not only has the amount of data increased significantly, so has the number of locations where it may be stored. In addition to the “official” project file, useful data may be stored on third party applications, private mobile devices, security devices or websites. Having inside and outside counsel discuss the types of technology being used on projects and where relevant data is stored when the project begins makes data preservation and retrieval easier when a claim or dispute arises.
Holding on to the Data
When a dispute arises, inside or outside counsel should advise the client to issue a “litigation hold” to preserve important data. In addition, counsel should send a preservation request to potential adverse parties and to third parties who may have relevant data. Because such data can be ephemeral, attorneys need to ask clients about it early on. Discussing data preservation and data location need not wait for formal discovery to begin. Delay in sending preservation notice may allow critical data to be auto-deleted.
How Can Construction Lawyers Learn About Gathering, Organizing & Collecting Data?
The ABA Forum on Construction Law recently published a book about new technologies in design and construction that provides resources for construction lawyers, arbitrators and others. Written by subject matter experts, Technology in Construction Law[i] to provide a practical reference for construction lawyers about the new technologies used on construction projects and guidance on gathering and managing the vast quantities of data they generate. It includes a data collection checklist, sample litigation hold and data preservation notices, and practical suggestions for gathering data generated on construction projects.
Technology in Construction Law—On Sale Through June 4, 2026
Technology in Construction Law is on sale through the ABA Forum on Construction Law at 20% off the regular price for ABA and Forum members. In fact, all Forum books are on sale through June 4, 2026. ABA Publications can be purchased here: https://www.americanbar.org/products/ Use discount code GOLDEN50.
[i][i] Partner, Noble Wickersham, Boston MA linkedin.com/in/chris-noble-7625138
[ii] Managing Executive, Greyhawk linkedin.com/in/charles-f-boland-p-e-bb9b7711
[iii] Deputy Dean and Professor, Yale University School of Architecture linkedin.com/in/phil-bernstein-b54134
[iv] Plenary Six, Learning by Doing: A Survey of the Most Significant Construction Projects of the Last 50 Years and What They Taught Us
[v] The Internet of Things (IoT) is the networking capability that allows information to be sent to and received from objects and devices (such as fixtures and appliances) using the Internet. Merriam-Webster.com Dictionary. Site condition monitors, temperature sensors, security monitors are examples of IoT devices.
[vi] Technology in Construction Law, Leslie King O’Neal (ABA Press 2023).
Leave a Reply