The Reptile Theory in Practice

Nicholas P. Hurzeler | Lewis Brisbois

The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.

A plaintiff’s attempt to use Reptile Theory begins with discovery responses and depositions, and continues in jury selection. It is therefore important to properly prepare your clients for questions incorporating “Reptile” strategies at the deposition, and to make the proper objections during the deposition. Then, defense counsel will primarily rely on motions in limine to hopefully convince the judge to preclude the Reptile Theory, particularly in opening statements and summations. Our office has had success in precluding the Reptile Theory by arguing at trial that the standard of care is not “the good of the community,” or “safety standards,” but controlling statutes and pattern jury instructions. In several cases, judges have accepted our argument that the plaintiff should be precluded from making such statements because they are prejudicial, vague, amorphous, and would distract the jury from the governing statutes and jury instructions.

As it turns out, however, there is very little legal authority that speaks to Reptile Theory in particular. The case law is somewhat undeveloped, without clear guidelines regarding what “Reptile” tactics are considered out of bounds. There is no statutory authority on Reptile Theory in particular (with the exception of a recently passed bill in the Texas legislature), and the case law is scarce to the point that many states have no published opinions at all that specifically apply to it. However, the Reptile Theory does fall under the broader topic of inflammatory and unduly prejudicial trial tactics. Every state has case law on that topic, as do the federal courts. There is also a body of case law on the closely related “Golden Rule” tactic, when the plaintiff’s attorney asks the jurors to treat the plaintiff as they themselves would like to be treated.

Below are some examples from the few state cases that specifically address Reptile Theory:

  • Regalado v. Callaghan, Cal.App.5th 582, 597-599 (2016)(playing to the jury’s emotions during closing arguments by employing the “Reptile Theory” is improper);
  • Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., 96 Mass. App. Ct. 410 (Mass: Appeals Court 2019)(reversing trial court ruling that granted the defense a mistrial based on Reptile Theory);
  • Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at 5 (W.D. Tenn. 2015)(denying motion to exclude Reptile tactics at trial where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned”);
  • Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. 2015)(granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy”);
  • Palmer v. Virginia Orthopaedic, P.C., No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015)(granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other ‘safety rules’”);
  • Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015)(motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’”);
  • Scheirman v. Picerno, No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015)(motion to exclude Reptile tactics denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule”);
  • Hutson v. Rooney, MD, No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. 2015)(denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician ‘safety rules’, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that a jury should ‘send a message’ or otherwise punish Defendant,” but stating that “the Court assumes all of plaintiff’s arguments will comply with the Court Rules, the Rules of Evidence, and the medical malpractice statute. . . The court will consider any legal objection made at trial”);
  • Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. 2015)(trial court was “handicapped because of its unfamiliarity with the Reptile Strategy” and denied a motion to exclude Reptile tactics, plaintiff obtained $17.8 million jury award against hospital).

For those states that do not have any written opinions on Reptile Theory in particular, such as New York, defense counsel can rely on more general rules proscribing “inflammatory” and “prejudicial” remarks, or appeals to the jurors’ emotions and passions. Bagailuk v. Weiss, 110 A.D.2d 284, 287 (3d Dept 1985)(“plaintiffs’ counsel’s grasping for the minds of the jury through these inflammatory, prejudicial and erroneous comments so contaminated the trial at a critical stage as to deny defendant’s right to a fair trial. We conclude that the errors were fundamental and require a new trial in the interest of justice and the exercise of discretion”); see also, Rivera v. Bronx-Lebanon Hosp. Center, 70 A.D.2d 794, 796 (1st Dept. 1979); Rodriguez v. Cato, 63 A.D.2d 922 (1st Dept. 1978).

In federal court, the defendant can move to preclude Reptile Tactics under FRCP 403, which is titled “Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.” Additionally, although “courts usually permit reasonable latitude in counsel’s final arguments to the jury … advocacy is circumscribed both by an attorney’s own professional responsibility and the court’s obligation to provide the parties a fair trial.” Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 283 (5th Cir. 1975). “Obviously, awards influenced by passion and prejudice are the antithesis of a fair trial.” Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 276 (5th Cir. 1998). “A new trial … is the appropriate remedy when a jury award results from passion and prejudice.” Id. at 275 (citing Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 782 (5th Cir. 1983)); Solorio v. Atchison, T. & S. F. Ry. Co., 224 F.2d 544, 547 (10th Cir. 1955)(“abusive and inflammatory argument is improper. And strong appeals in the course of argument to sympathy, or appeals to passion, racial, religious, social, class, or business prejudice lie beyond the permissive range of propriety).

Eventually the law will catch up and provide more specific guidance on Reptile Theory. In the meantime, defense counsel can combine what law there is with the more general principles described above, and with case law on the “Golden Rule,” in support of a motion in limine at the trial stage. By this method, defense counsel can attempt to convince a judge at trial to exclude any questions and/or answers premised on Reptile Theory before it taints or inflames a jury.

2021 Executive Insights: Leaders in Construction Law

Donald Berry | Construction Executive

WHAT SHOULD CONTRACTORS LOOK FOR IN A LAW FIRM WHEN SEEKING LEGAL REPRESENTATION?

Gregory Cokinos
President and CEO
Cokinos | Young

First, experience in the construction industry is of primary importance and vital to successfully negotiating construction contracts and handling construction claims and disputes. Even a mildly complex construction dispute is more than most non-construction lawyers can properly handle. Issues concerning scheduling, productivity, change management and risk shifting (among many others) are complex and unique to construction and can be further complicated by the procedural and substantive law that differs from jurisdiction to jurisdiction.

Second, it is essential that your law firm has a culture of representing construction professionals. Understanding construction nomenclature and how construction projects are staffed, organized and documented saves time and money in an already expensive and time-consuming process.

You cannot overstate the advantage of shared resources within an established construction firm when evaluating and handling construction matters. A law firm that dedicates a significant portion of its practice to the construction industry is uniquely positioned to realize this advantage. Finally, as I tell our young lawyers, “success” only comes before “work” in the dictionary. Hard work is the key to successfully negotiating a contract or executing a litigation plan in this complex industry. So, look for a firm that is not afraid of working long days and weekends to achieve success.

Ernest Isola
Partner, Co-Chair of Construction Group
Gordon Rees Scully Mansukhani LLP

In our experience, contractors seeking legal representation are looking for a law firm with attorneys who are responsive and have the experience and expertise in those areas that are important to the contractor’s business. We know that a contractor is constantly confronted with time sensitive issues that are driven by schedule, deliverables, in addition to the needs of clients and subcontractors.

When the contractor reaches out to the attorney for advice, the attorney should initially respond that day or within 24 hours at most, and less if the initial contact indicates the issue is time sensitive. After the initial contact, regular status updates are crucial such that all parties are properly advised of recent developments so that an action plan can be devised and adjusted.

The contractor should absolutely expect that his or her attorney has a strong working knowledge of the construction process and the issues confronting contractors at every step of the project. An experienced construction attorney will be able to offer a wide range of legal services and advice in contract analysis, claim prosecution, payment and lien issues, liability and claim avoidance as well as litigation.

That advice should be objective and fact-based, with a clear explanation of risks, costs, benefits and likely impacts based on the scenarios presented.

All in all, the contractor and attorney form a cohesive team that can effectively analyze and respond to complex legal issues as they arise, as well as also evaluate the practical impacts and potential consequences of decisions that are made.

Ali Salamirad
Managing Partner
SMTD Law LLP

Contractors should look for lawyers who can understand, analyze and predict the outcome of their issues, soon after retention. To do so, lawyers need to have substantial experience with the unique issues that contractors deal with frequently. Lawyers also need to be willing and capable of obtaining critical input from experts and consultants at an early stage, in order to predict the cost and likely outcome of litigation. 

As a specialized boutique law firm, SMTD Law LLP takes great pride in being able to provide this rapid response to our clients, which is why many of the nation’s leading construction firms rely on SMTD Law LLP to help them navigate these murky waters.

Henry Bangert
Founding Partner
Beltzer Bangert & Gunnell LLP

A significant aspect of construction law is understanding the technical side of the legal issues. It is essential that a contractor’s lawyer understand the construction issues in play. When seeking legal representation, contractors should look for lawyers with construction industry experience and knowledge.

Timothy Woodward, Esq.
Partner and Chair of the Construction Practice Group
Shutts & Bowen LLP

Experience and credentials are, of course, necessary. So is a deep bench. Contractors selecting law firms to handle their matters should consider not only the lead lawyer, but the other members of the team too, as many construction claims require more than one capable person to be managed effectively. 

Evaluating the legal team, including associate and/or paralegal members, is often overlooked, but can make a big difference in terms of overall effectiveness and cost management. It is also critical that contractors selecting a legal team ensure that the legal team is, from the outset, on the same page with respect to how much of a “hands-on” active role the contractor and/or its in-house legal team will play in the day-to-day management of their claims. 

Ultimately, however, what really separates “good” from “great” lawyer/client relationships is when the legal team also really understands the contractor’s business, including the nature of the work it performs, its niche in the marketplace and the company’s goals.

WHAT LEGAL CHECKLIST SHOULD EVERY CONTRACTOR MAKE BEFORE COMMENCING A NEW PROJECT?

Adam P. Handfinger
Co-Managing Partner, Miami Office
Peckar & Abramson, P.C.

Construction contracts are often-times complex, and compliance can be a real challenge, especially at the project level. Project teams must know how to comply with, and then coordinate, all applicable contracts (prime contracts, subcontracts, etc.). We often include the following provisions on project checklists as part of pre-commencement training for the project teams.

  1. Allowances. How the amounts are calculated and ultimately reconciled with the final contract value/balance.
  2. Changes. Identification of what constitutes a change and how to timely and completely document same.
  3. Confidentiality. What can and cannot be said about the project and to whom.
  4. Contingency. When it can be used and the applicable requirements (e.g., advance written approval by the owner).
  5. Contract Price/Contract Sum. Calculating and itemizing the amount, which may include identifying reimbursable and non-reimbursable costs.
  6. Force Majeure and Other Delays. Identification of the events entitling a contractor to an increase in time or an increase in money, as well as the necessary steps to submit those claims and properly preserve rights. Among other things, this typically includes the contractual definition of “adverse weather” and more critical since the pandemic, “changes in conditions.”
  7. Notices. When notice must be sent, the technical requirements to preserve all rights.
  8. Payment Provisions (Progress and Final). When to submit applications, the information required and how to administer receipt of payments and the making of downstream payments.
  9. Retainage. How and when it can be released to all contractors.
  10. Insurance and Safety. Requirements and protocols, especially those unique to the particular project.
  11. Schedule. Milestones and final completion requirements, including definition(s) of substantial completion.
  12. Subcontracts. Making sure that the elements of the prime contract are coordinated with subcontracts, including “flow downs” and “flow ups.”
  13. Trouble Points. What requires special attention, usually provisions that are out of the norm (e.g., site access) or areas of concern for the project (e.g., subsurface conditions).

Joshua Levy
Partner
Husch Blackwell LLP

Contractors need to ensure three core items before commencing work. These concerns are universal and apply in good times and in difficult markets. First, every contractor should prequalify the owner by asking for reasonable evidence that the owner has made financial arrangements to pay for the work. 

A contractor should not accept it at face value when an owner says the “funding is covered.” Unless there is a pre-existing relationship or the owner is a well-recognized institution, a reliable pre-qualification protocol should be followed. The contractor needs to verify funding with a realistic contingency.

Once the money is verified, the contractor must closely review its contract for accuracy and, surprisingly, signatures. We see disputes arise on countless projects that have commenced without a signed contract. The disputes often involve scope questions because simple mistakes are made identifying the agreement set of plans, exclusions and inclusions and the agreed upon schedule for the work.

When the owner agreement is in place, the next items to check are signed subcontracts and additional insured coverages. The contractor shifts a variety of risks through subcontractor indemnification obligations and additional insured coverage. 

However, contractors often consider the receipt of subcontractors’ initial payment applications as the backstop to verify agreements are signed and proof of insurance collected. That is a flawed approach. Project accidents can occur during the first 30 days of work. A contractor may not be able to utilize the protections in its subcontract without a signed version showing both parties agreed to all terms.

Scott Walters
Partner
Smith, Currie & Hancock, LLP – Atlanta


The main legal concern every contractor faces before starting a project is determining the multitude of project risks that might affect the contractor’s successful performance. Each project is unique and requires careful review, but any good pre-performance checklist should identify key areas where project risks arise and steps to manage those risks. 

Some broad risk categories that I typically advise clients to identify and assess, or qualify, before starting a new construction project include qualifying: the contractor (itself); the owner; the project locale and site; subcontractors and suppliers; and project documentation. If the contractor is not responsible for project design, it should also qualify the design and design documents pre-project, primarily to ensure that the scope of work is clearly defined.

When qualifying itself, the contractor should consider such factors as its prior experience with similar projects and whether it has sufficient resources to pay for and perform the work. The same assessment tools would typically apply to qualifying subcontractors and vendors. 

When qualifying the owner, the contractor’s main concern should be the owner’s experience on and success with similar projects and whether it has sufficient funding to pay for the work. 

Qualifying the project locale and site can be critical to the contractor’s success. Here, the contractor should assess such things as licensing, permitting and registration requirements; available labor; wage and hour laws; special preference requirements (particularly on government projects); special tax and insurance requirements; applicable bond and lien laws; site accessibility; and site conditions. As for the project documents, the prudent contractor should have a checklist identifying all of the contract documents and key contract clauses that attempt to shift or allocate payment and performance risks between the contracting parties.

IN THE WAKE OF THE PANDEMIC, DO YOU ANTICIPATE ANY CHANGES IN CONTRACT LANGUAGE WITH RESPECT TO FORCE MAJEURE CLAUSES?

Kenneth W. Cobleigh, Esq.
Vice President and Counsel
AIA Contract Documents


Initially, there was a lot of concern among contractors and other project stakeholders over the need for contract clauses that specifically included the terms “force majeure” and “pandemic.” That concern largely disappeared as project participants began to work through the various challenges of the pandemic. It became apparent that the standard terms of the AIA Contract Documents were sufficient to address most, if not all, pandemic-related circumstances; and that more general terms, like section 8.3 of the A201™-2017, were preferable to more specific and restrictive clauses. 

The standard terms provided enough structure and guidance to protect the key interests of the parties. They also incentivized the parties to discuss issues like labor inefficiency, in-person site visits, project delay and cost escalation, as well as to craft project-specific solutions that reasonably addressed each stakeholder’s concerns in order to avoid unnecessary project suspensions, contract terminations and other drastic steps. 

When pandemic-related issues first appeared, the attorneys on the AIA Contract Documents content team immediately evaluated the core AIA Contract Documents and produced educational materials to help industry stakeholders navigate their contract options and remedies. 

While major changes do not appear necessary, we continue to regularly review articles, attend webinars and participate in industry-wide discussions about the issues. We also hope to conduct targeted market outreach to see if stakeholders have suggestions for future edits to the standard AIA Contract Documents provisions.

HOW HAS THE PANDEMIC AFFECTED THE LIEN RIGHTS OF SUBCONTRACTORS?

Jason S. Lambert 
Partner
Dinsmore & Shohl LLP


The pandemic created a period of slowed/stopped projects and uncertain futures. This brought to the forefront of many subcontractors’ minds the need to make sure all pre-lien notices are sent on every project.

Subcontractors can be reluctant to exercise their lien rights or to send pre-lien notices. They think it will anger the general contractor or make it more difficult to obtain payment, as it may make the general contractor look bad. But in reality, subcontractors have to serve pre-lien notices because they never really know what may happen on a project. 

The pandemic has illustrated that dynamic perfectly. Even if everyone involved in a project is honorable, the work is running smoothly and the money is flowing freely, the project can still be brought to a screeching halt due to forces outside of everyone’s control. In those circumstances, subcontractors will wish they had their lien rights secured.

Subcontractors should exercise their pre-lien rights and, if they receive push back, they should use the pandemic as an example of why they are doing so. Pre-lien notices and similar documents are not a poor reflection of a project. If anything, they are indicative of a subcontractor who is on top of details and paperwork—good qualities to have for a project of any size.

VIRTUAL TESTIMONY IN CONSTRUCTION LITIGATION AND ARBITRATION HAS BECOME THE NEW NORMAL DURING THE PANDEMIC. HAS THE LACK OF IN-PERSON TESTIMONY HAD AN IMPACT ON THE EFFECTIVENESS OF EXPERT WITNESSES AND ANALYSIS?

Rob Remington
Partner and Chair, Construction Law Practice Group
Hahn Loeser & Parks LLP


If there is one thing that we have learned from the last year, it is that virtual depositions can be effective and offer an increased level of efficiency and cost savings. Complex depositions involving a significant number of documents, witnesses or opposing counsel that you suspect might attempt to take advantage of the virtual format should be approached with caution. 

But from our experience this past year, it is clear that the virtual format is an option that we should offer to our clients and implement where appropriate to enhance the efficiency of our legal services without compromising on quality.

Evan Blaker 
Partner
Cohen Seglias Pallas Greenhall & Furman PC

Last year at this time, as we were all in the early stages of the pandemic and learning how to work from home offices, I would have predicted that remote hearings and arbitrations wouldn’t be nearly as effective as live testimony. With the benefit of experience and hindsight, I can report that my prediction was not accurate. In fact, I now believe that virtual hearings are here to stay, even as we emerge from the COVID-19 pandemic that plagued us through 2020.

With any hearing or arbitration, virtual or live, preparation is key. That rule especially applies to expert witnesses. If the expert knows the record and demonstrates a familiarity with the project record, the testimony will be believable and persuasive, whether live or remote. Demonstrative exhibits are crucial, perhaps even more so in the virtual setting. A well-thought-out demonstrative or summary exhibit is critical, as it enables a judge or arbitrator(s) to follow the expert’s testimony and have a reference when deciding the case. 

In a complex construction case that I arbitrated late last year, we used charts and demonstratives to illustrate the expert’s analysis and basis for her conclusion. In fact, our opponents used our expert’s as-planned schedule during the hearing. That gave our expert instant credibility with the panel and certainly helped us defeat the claims of our opponent. The year of virtual depositions and hearings has highlighted the need for preparation and reminded all of us of the power of demonstrative exhibits.

WHAT ADVICE DO YOU HAVE FOR CONTRACTORS WHEN NEGOTIATING A CONTRACT TO PROVIDE FOR INCREASES DUE TO THE IMPACT OF COVID-19 ON JOB COSTS AND THE PROJECT SCHEDULE?

Anthony Niccoli
Partner
Atkinson, Andelson, Loya, Ruud & Romo


Now that the pandemic is upon with us, many owners are requiring contractors to account for additional time and/or costs arising from COVID-19 in their bids. Easier said than done. Although contractors may know of the pandemic in a general sense, how it will affect a particular project in a specific or unique way is difficult, if not impossible, to ascertain. 

So how do contractors put a price or quantity of time on the unknown? If we’re honest, we must admit they cannot. A contractor should communicate this hapless truth to an owner and negotiate a compromise. 

A contractor and owner should agree on a contingency fund for additional costs and should build additional time into the project schedule. The parties can discuss and/or negotiate the amount of the contingency and additional time based on relevant factors. The contractor can access the contingency fund and/or additional allocated time only for COVID-19 delays. At the conclusion of the project, any unused contingency goes back to the owner. This strategy limits the risk to owner and contractor reducing the anxiety of both parties embarking on projects in these difficult and uncertain times.

Matthew T. Collins
Partner
Fabyanske, Westra, Hart & Thomson, P.A.


For the time being, contractors should now price COVID-19 personal protective equipment into their labor rates or general condition costs. COVID-19-related PPE is the new normal for the foreseeable future. 

Contractors should also account for COVID-19 when preparing their construction schedules. The additional time required to accommodate social distancing best practices and absenteeism will have an impact on schedule.

Ben Westcott 
Co-Managing Shareholder
Andrews Myers PC


A typical force majeure provision provides limited (time only) relief to the party seeking to be excused from its obligations as a result of the effects of the force majeure event. In addition to force majeure, there are other provisions that you can look for or add to your contract to deal with COVID-19 impacts.
 
Emergencies (10.4 of A201-2017). “In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency (including COVID-19) shall be determined as provided in Article 15 and Article 7.”  

Some of the recoverable costs might include: additional gates for access and security, increased buses for transportation, additional shifts, split shifts and staggered shifts in order to comply with new laws imposing restrictions on the number of people that can be in one place at one time.  
 
Form Amendment for Price Escalation (ConsensusDocs 200.1). This form creates a multiple-step process that provides for an equitable adjustment to the contract price for changes in potentially time and price-impacted material items. However, it requires effective negotiation with the owner on the front end, as well as foresight into (a) the potentially time- and price-impacted material items to be listed on Exhibit A, (b) the baseline price and (c) the percentage cap on adjustments.

Ian P. Faria 
Office Managing Partner, Houston
Bradley Arant Boult Cummings LLP


The two areas of the contract that I find most helpful to contractors on a project, in light of the impact of COVID-19, are the escalation clause and the force majeure clause. Through no fault of the contractor, material costs have continued to increase month after month with little relief in sight. A carefully written materials escalation clause tied to certain benchmarks is usually the best way to recover those cost increases. Such a clause usually requires notice and a change order but, properly drafted, such a clause provides for a mandatory payment for material and cost increases (even for a fixed price contract).

Along the same line of thought, COVID-19 lockdowns impacted production schedules despite the industry being labeled “essential” in most jurisdictions, including Texas. When you also factor in the new OSHA regulations relating to COVID-19, delays in most projects were unavoidable. There are ample reports of entire crews, companies and projects that were forced to stand down for a minimum of ten days due to just one person testing positive for COVID-19. In such a situation, the force majeure clause in your contract would provide an avenue to mitigate a claim for delay or non-performance.

While there is no universally accepted definition of force majeure in most states, including Texas, such a clause in your contract allows a contractor to be excused for performance delays. In order to take advantage of this type of contractual protection, the force majeure clause should include a well-thought-out list of specific events (including global pandemics). 

The clause should also include a “catch-all” in the provision to excuse performance. For the catch-all to be upheld, the event in question will have to be not foreseeable by the parties to the contract when the contract was entered, and they are usually upheld if the event in question is similar to the specific list in the clause.

2021 Construction Related Bills to Keep an Eye On

Christopher G. Hill | Construction Law Musings

Each year here at Musings, I try and highlight some key construction industry-related bills that are winding their way through the Virginia General Assembly.  This year is no different, though this year does not have the action level that prior years have had.

Without further ado, here are those that I spotted and which I will be “Tracking” as they move through the sausage-making process:

HB2288– Virginia Public Procurement Act; construction contracts; requirement to submit list of subcontractors. Requires bidders or offerors on contracts for construction of $250,000 or more to submit along with their bid or proposal a list of all subcontractors, regardless of tier, that the bidder or offeror intends at the time of submitting the bid or proposal to use on the contract to perform work valued at $50,000 or more, including labor and materials. The bill requires such list to include certain information about each contractor. This bill also includes a re-passage provision that requires that it be re-enacted in the 2022 session to become effective.  Finally, the Senate General Laws and Technology committee has continued this to the First Special Session.

SB1209– Liability of general contractor for wages of subcontractor’s employees. Provides that there is a valid defense to a claim of nonpayment of wages by a general contractor to a subcontractor’s employees if the general contractor obtains a written certification that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor’s knowledge all sub-subcontractors have also paid their employees. The bill also provides that the terms “general contractor” and “subcontractor” shall not include persons solely furnishing materials for the purposes of the liability of a contractor for wages due to a subcontractor’s employees.

This bill passed the House and was continued to Special Session 1 by Senate committee.

SB1305– Virginia Public Procurement Act; construction contracts; subcontractor workforce requirements. Requires all public bodies in a locality with a population in excess of 25,000 and covered institutions, defined in the bill, to include in every construction contract of more than $500,000 certain provisions related to the outsourcing of subcontracted work, which a contractor shall agree to during the performance of such contract. Such provisions mandate that a contractor shall only utilize subcontractors that certify in writing to the contract that they will outsource no more than 10 percent of the cost of the work subcontracted for, excluding the provision of materials, with specified exceptions.

Bill passed the Senate and has been postponed to the first Special Session by the House.

SB1108–  General district courts; jurisdictional limits. Increases from $25,000 to $50,000 the maximum civil jurisdictional limit of general district courts for civil actions for personal injury and wrongful death. The bill contains an emergency clause.

This Bill has passed the Senate and the House Civil Courts subcommittee has recommended reporting it out of committee with amendments.

As always, I recommend that you read the full text of these bills and consult a Virginia construction lawyer with questions.  If there are other bills of note that I have missed, please let me know in your comments or by email.

What Law Firms and Legal Organizations Should Consider Before Creating Their Own Apps

Danielle Braff | ABA Journal

When it comes to law firms and legal organizations, perhaps the question isn’t “Is there an app for that?” but “Should there be an app for that?”

We spoke with firms that decided to build their own apps, as well as with law analysts, to dig into their purpose and profitability.

Eric Goldman, professor at the Santa Clara University School of Law and co- director of its High Tech Law Institute, says law firms considering their own apps should answer two main questions. First, who is the target audience for the app? Is it existing clients? Prospective clients? The world at large? Or some other community?

“By clearly identifying the app’s audience, the law firm can then figure out how to measure the return on investment,” Goldman says.

Additionally, it will be much harder to measure the return on investment for an app designed to build the firm’s long-term brand than it will be to measure the returns for apps designed to convert prospective clients into actual clients, he says.

The second question: How much will it cost to maintain the app over time? This includes the costs of fixing bugs, keeping up with changes in technology and updating the content, where applicable. According to Goldman, firms must also determine who is going to own responsibility for that supervision, what the costs of that supervision are—both out-of-pocket and opportunity costs—and how those ongoing costs affect the return on investment.

For many law firms, apps don’t make any sense because their audiences don’t need them—or because the returns will be terrible.

“Most likely, the most successful apps will provide existing clients with better service or help to get more business from them. But even then, the apps should be driven by what clients want and should be evaluated carefully for ROI,” Goldman says.Kia Roberts

Kia Roberts: “Our clients immediately recognize the value of the app from a risk management perspective.” Photo by Carey Kirkella.

That’s the goal for Triangle Investigations’ app, which was launched and developed in 2019, says Kia Roberts, a lawyer and the founder and principal of Triangle Investigations.

The firm—which consists of lawyers and expert investigators performing misconduct investigations within workplaces, schools and other organizations—developed its own app called Telli, which is offered as an enhancement to clients.

“When we have concluded an investigation into allegations of misconduct within a client organization, many of our clients are worried about future misconduct and how they can keep their finger on the pulse of misconduct in real time,” Roberts says.

To create Telli, Roberts vetted and phone-screened many developers before landing on the one she felt could make the app she needed. Telli was designed to be a mechanism for employees to report misconduct, and Roberts says it eases anxiety for employers who wouldn’t otherwise know what’s going on within their companies.

“The outcome of the app has been great,” she says. “Our clients immediately recognize the value of the app from a risk management perspective and feel that it offers some protection against them getting hit with a sexual harassment lawsuit unaware.”

But Roberts also says creating an app is expensive, so she had to justify the cost of making it. Before creating an app, she suggests thoroughly researching the usefulness of it for your clients and crunching the numbers.

Other firms have created apps for public use.Gabriel Cheong

Gabriel Cheong: “Put yourself in your client’s shoes.” Photo by Nicole Chan Photography.

Gabriel Cheong, partner and owner of Infinity Law Group in Quincy, Massachusetts, says his firm has an app that calculates child support payments. The original iteration of the app was a partnership between Cheong and an app developer. But several years later, Cheong overhauled the app with the help of an app development company from India.

“Overall, it was a very collaborative process, and we had a lot of input into the design and functionality of the app itself,” he says.

Cheong decided to make the app because of the way Massachusetts child support payments are calculated: They involve many multiplications, percentages and conditional statements. While they built the app for themselves to use when they’re in court, it’s also available for the public. “Since we’ve built the app and released it to the public, most divorce lawyers in Massachusetts have it, pro se clients have downloaded it and even judges use it,” Cheong says.

The app also has helped with business. Cheong says his firm has received calls from potential clients who have used the app but realized they need extra help.

According to Cheong, the app has been successful because it helps with a concept that can’t easily be found elsewhere. “Put yourself in your client’s shoes,” Cheong says. “If your app doesn’t add to a functionality that already exists on a smartphone, then it’s useless.”

It’s also key to make an app that people will actually use, says Alex Hargrove, chief technology officer of NetLaw Group, a company that allows users to generate their own estate planning documents. Customer acquisition is the biggest cost of getting a new app to market: The iterations you have to go through to find that product market fit can quickly drain your business, he says.

Hargrove worked with his firm to create NetLaw Draft, which is expected to come to market in early 2021. Similar to the LegalZoom app, it will allow attorneys to connect to users by offering them an app to draft their own wills. “Ultimately, we hope to create a large market of potential clients who have all completed a free will in our system and are virtually prequalified as needing additional services,” Hargrove says.

He adds that while do-it-yourself has limitations, “by connecting attorneys with a burgeoning pool of DIY users and then providing the attorneys with a turnkey way to deliver bite-size add-on services, we hope to bring about a world where it’s not a choice between do-it-myself or pay for a full-service lawyer.”