In “Hogwarts School of Risk Transfer: CG 20 10, CG 20 37, and the Grimoire of Additional Insurance,” Jevon and Leah invite attendees into the enchanted world of additional insured endorsements, where contracts cast spells and risk is transferred with the flick of a legal wand. This session demystifies the arcane language of CGL (Commercial General Liability) forms, teaching attorneys how to navigate the magical (and occasionally cursed) realm of coverage extensions.

To register, go to: MSBA Additional Insured Endorsements and Coverage Extensions CLE.

The session is also available on Zoom.

Jevon works with clients in a range of industries, with a focus on representing stakeholders in construction and real estate matters and assisting policyholders in insurance coverage disputes, including at the appellate level. He has established himself as a thought leader in the Minnesota legal community, co-authoring four volumes of the Minnesota Practice Series. Jevon is an associate fellow with the Construction Lawyers Society of America, and he received the national Holt Gwyn Writing Award in 2025 for best construction article by the American College of Construction Lawyers.

Leah has a decade of experience in complex commercial disputes, including construction and insurance matters. She practices in state and federal courts nationwide and also represents clients at the appellate level. Leah is an active member of the American Bar Association Forum on Construction Law and the ABA’s Litigation Section.

David is a partner, vice chair of Maslon's Board of Directors and Executive Committee, and co-chair of Maslon's Construction & Real Estate Litigation Group. A skilled trial attorney and former federal prosecutor, he regularly represents clients in construction and insurance coverage disputes and a variety of commercial litigation. David is a Fellow of the American College of Construction Lawyers and the American College of Coverage Counsel—one of just three lawyers in the U.S. invited to join both organizations. David was recognized by Chambers USA as one of seven Minnesota lawyers ranked Band 1 for Construction (2025) and Best Lawyers as the 2026 Lawyer of the Year (top ranked attorney) for Construction Litigation in the Minneapolis region. Who's Who Legal/Lexology named him one of nine U.S. attorneys to receive the 2026 Client Choice Award for excellence in construction law and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." David was also listed by Lawdragon in its 500 Leading Litigators in America ranking for 2026.

Jason, partner and co-chair of the Construction & Real Estate Litigation Group, focuses his practice on representing clients from the construction, real estate, financial services, food, and railroad industries. He regularly appears in federal and state court on behalf of design-build firms, general contractors, architects, engineers, specialty contractors, suppliers, property management companies, real estate owners, and lenders. Jason has also been ranked by Chambers USA in construction law since 2016. Prior to joining Maslon in 2002, Jason honed his trial and appellate skills as a Naval Officer with the United States Navy Judge Advocate General's Corps, where he led several courts-martial, administrative hearings, and military appeals.

Jason has extensive experience representing clients from the construction, real estate, financial services, and railroad industries. He appears in federal and state court on behalf of design-build firms, general contractors, architects, engineers, specialty contractors, suppliers, property management companies, real estate owners, and lenders. A portion of Jason's practice also involves representing a Class I U.S. railroad in disputes in Minnesota and North Dakota.

Jason has been ranked every year since 2016 in Chambers USA for his work in construction law. A graduate of the University of Minnesota Law School, he joined Maslon in 2002.

Additionally, David Suchar retains his Band 1 ranking for Construction in Minnesota and Steve Schleicher retains his Band 1 ranking for Litigation: White-Collar Crime and Government Investigations in the state. Band 1 is the highest-ranking tier.

Also ranked in the new edition of Chambers USA:

• Bryan Freeman is newly ranked for General Commercial Litigation in Minnesota.
• Jason Lien continues to be ranked for Construction in Minnesota, with Jevon Bindman once again recognized as an Up and Coming attorney in Construction.
• Susan Markey is ranked for the second consecutive year for Corporate/M&A in Minnesota.
• Jon Septer is ranked for the second consecutive year for Real Estate in Minnesota.
• Bill Pentelovitch continues to be recognized as a Senior Statesperson for General Commercial Litigation in Minnesota.

The rankings are the result of extensive client interviews and research to assess technical legal ability, client service, business understanding, value, team depth, and other qualities most valued by clients.

To view Maslon's full Chambers USA rankings, go to: Chambers USA Guide 2025.

About Chambers and Partners
Since 1969, London-based Chambers and Partners has published world-famous guides to the legal profession. A team of more than 200 editorial and research individuals conducted thousands of one-on-one interviews with in-house counsel and third-party experts for the 2025 edition of Chambers USA: America's Leading Lawyers for Business.

Annika represents clients in complex civil litigation, white-collar criminal defense, tort and product liability defense, and general commercial litigation. She brings significant courtroom experience, including key roles in six trials over the last two years in both civil and criminal cases.

Annika's dedication to the profession and the community is evident in her many activities. She has taken on leadership roles with Minnesota Women Lawyers and the Women's White Collar Defense Association, and she volunteers with the Minneapolis Reader/Writer program, among other roles. Annika is also engaged in pro bono work through the Pro Se Project and the Tubman Safety Project. Through her work with the former, she was recently able to assist an incarcerated individual in achieving a settlement related to excessive force they experienced at the hands of correctional officers.

While attending the University of Minnesota Law School, Annika served as a law clerk in the Hennepin County Public Defender's office. She also participated in the National Moot Court Competition Team, served as the mentorship program coordinator for the Well-Being Initiative, and volunteered with the Asylum Law Project.

The Power List is a feature that examines the power brokers who lead and influence the Minnesota legal community, with a focus on those "whose mere presence on a case signifies the stakes, who have influenced the direction of the law, whose leadership in the community is pervasive, and whose respect within the bar is undeniable."

To read the features, go to: Minnesota Lawyer, "The Power List: David Suchar" and "The Power List: Jonathan Septer" (subscription required).

David is a skilled trial attorney and former federal prosecutor who regularly represents clients in construction and insurance coverage disputes and a variety of commercial litigation. He is a Fellow of the American College of Construction Lawyers and the American College of Coverage Counsel—one of three lawyers in the U.S. invited to join both organizations. Who's Who Legal/Lexology named David one of eight U.S. 2025 Global Elite Thought Leaders in the category of Client Choice-Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims."

David was recognized by Lawdragon in its 500 Leading Litigators in America ranking (2025), by Thomson Reuters® as a Stand-Out Lawyer (2025) based on its survey of more than 2,000 senior in-house counsel, and by Chambers USA as one of seven Minnesota lawyers ranked Band 1 for Construction (2024). David has developed a niche national practice representing commercial policyholders in insurance coverage disputes, including on many of the largest construction projects and claims across the United States.

Jon is one of the preeminent real estate attorneys in Minnesota as ranked in Chambers USA and has a proven track record as an exceptional transactional attorney, negotiator, and dealmaker. He represents developers, investors, and businesses in all aspects of the commercial and agricultural real estate life cycle, including acquisitions and dispositions; borrower-side financing and refinancing transactions; commercial leasing; real estate development, land use, and construction projects; 1031 exchanges; title and survey due diligence review; and environmental and regulatory compliance matters.

With years of experience under his belt, Jon excels at crafting practical, results-oriented solutions tailored to each client’s unique objectives. Whether structuring complex property deals or resolving intricate land use disputes, Jon’s sharp negotiation skills and ability to cut through the noise and deliver tangible outcomes makes him a go-to expert for anyone seeking a strategic partner in real estate law. Jon also partners frequently with the firm's litigators to enforce clients' rights, including in construction litigation, mechanics' liens disputes, commercial lease disputes, condemnation and eminent domain matters, receivership actions, and more.

Both were independently nominated as one of the three most outstanding lawyers their clients worked with as part of Thomson Reuters’ global research with senior in-house counsel.

David is a skilled trial attorney and former federal prosecutor who regularly represents clients in construction and insurance coverage disputes and a variety of commercial litigation. A Fellow of the American College of Construction Lawyers and the American College of Coverage Counsel, he is one of three lawyers in the U.S. invited to join both organizations. Who's Who Legal/Lexology named David one of eight U.S. 2025 Global Elite Thought Leaders in the category of Client Choice-Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." He was recognized by Lawdragon in its 500 Leading Litigators in America ranking (2025) and by Chambers USA as one of seven Minnesota lawyers ranked Band 1 for Construction (2024).

Jason focuses his litigation practice on representing clients from the construction, real estate, financial services, food, and railroad industries. He regularly appears in federal and state court on behalf of design-build firms, general contractors, architects, engineers, specialty contractors, suppliers, property management companies, real estate owners, and lenders. Jason has been ranked by Chambers USA in construction law since 2016 and has been described as "an esteemed trial lawyer with a wealth of experience assisting with litigation mandates relating to construction defects and insurance coverage issues." Prior to joining Maslon in 2002, Jason honed his trial and appellate skills as a Naval Officer with the United States Navy Judge Advocate General's Corps, where he led hundreds of courts-martial, administrative hearings, and military appeals.

Jevon’s article, “Who Is Primary? How Other-Insurance Clauses Affect Priority of Coverage to Additional Insureds in Construction Disputes,” will be published by the ACCL.

Jevon works with clients in a range of industries, with a focus on assisting policyholders in insurance coverage disputes and representing stakeholders in construction and real estate matters, as well as appeals. He appears frequently before Minnesota and federal appellate courts.

Jevon has also established himself as a thought leader in the Minnesota legal community, in large part through his writing. He co-authors four volumes of the Minnesota Practice Series—the seminal treatise on Minnesota law and procedure—including the Minnesota Handbook of Courtroom Evidence and Civil Rules Annotated. Jevon is a member of the Minnesota Supreme Court Advisory Committee on the Rules of Civil Procedure, and he is active as a speaker on court rules, appellate practice, and insurance coverage.

The organization conducts a rigorous vetting process prior to inviting a lawyer to become a fellow. Fellows include many of the most prominent members of the insurance law bar. Maslon Partners Margo Brownell and Bryan Freeman also are fellows of the ACCC.

A trial attorney and former federal prosecutor, David has built a broad construction and insurance coverage practice. He negotiates and litigates significant construction negligence, lien, and payment disputes throughout the Midwest and has one of the top insurance coverage for construction practices in the country.

David is one of only seven lawyers to receive the highest possible Band 1 ranking from Chambers USA in its 2024 guide for Construction in Minnesota. Who's Who Legal/Lexology named him one of eight U.S. 2025 Global Elite Thought Leaders in the category of Client Choice-Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." David has served in various leadership roles with the American Bar Association Forum on Construction Law, and in 2023, he was chair of The Trial Network, a national network of 24 leading trial law firms. David was recently elected as a Fellow of the American College of Construction Lawyers (ACCL) as well—he is one of three lawyers in the U.S. invited to join both the ACCL and ACCC.

Drawing from her extensive experience as a judge and mediator, she discusses the delicate balance of timing in terms of exchanging information, sharing key information about mediation participants ahead of time, and being willing to make bold moves as lawyers and party representatives in order to optimize settlement opportunities. Her practical advice and expertise offer valuable guidance for navigating the mediation process.

Listen to this episode below.

David began hosting the ABA’s “Construction Law Today” podcast in 2022. Additional podcast episodes can be found here.

INTERVIEW TRANSCRIPT

Announcer
This is Construction Law Today, the podcast of the American Bar Association's Forum on Construction Law. Construction Law Today is a podcast about current topics in American construction law. Your host for Construction Law Today is David Suchar.

David Suchar
Our podcast, Construction Law Today, began in July 2019 and is now in its third season. In our first two seasons my good friend, Buzz Tarlow, produced 25 episodes on a variety of timely and interesting topics in the field of construction law. In our upcoming season, I expect to produce similar podcasts at the rate of about one new podcast per month. As always, we welcome your questions and comments. Please let us know what we can do to improve the podcast. The contact information for Construction Law Today is found at the end of this podcast. On behalf of the American Bar Association's Forum on Construction Law, thanks for listening.

Welcome to the podcast. Today we have a great guest, and that's Judge Nancy Holtz. Judge Holtz is a full-time neutral at JAMS. She is based in Boston, but she mediates cases throughout the United States. Before joining JAMS, Judge Holtz spent 15 years on the Superior Court in Massachusetts. While on that court, she sat predominantly in Boston presiding over civil cases, including construction cases. Judge Holtz is a member of the ABA Forum on Construction Law and has agreed to share her thoughts on mediating construction cases, specifically discussing the importance of timing and mediation.

Judge Holtz, welcome to the podcast.

Judge Nancy Holtz
Thank you so much, David, and thank you for those incredibly kind words and letting me join your podcast and have a little chat with your listeners. Since you mentioned the Forum, I did want to acknowledge that organization. I feel like in many ways I'm a born-again member of the Forum. When I had first started at JAMS about 10 years ago, I joined the Forum. And then I had a move from Boston to Dallas, back from Dallas to Boston and COVID hit and all that, and so I drifted away, but I have recently re-upped at the Forum and it's been terrific.

In some ways, I think I forgot how good it really is, the programming, meeting great people, like your listeners, great speakers. And in fact, I just came back from the meeting in Pittsburgh and I'm all ready to pack my bags for the midwinter meeting in Tampa. So I feel like I get a lot from the Forum, so I'm happy to have a chance to give back through something like this, this podcast, and hopefully provide some helpful advice and insights.

David Suchar
That's great to hear. I feel the same way and we're very happy to have you on the podcast. Turning to your background, it sounds like you handled a variety of cases while you were on the Superior Court, including construction cases. Can you tell us about your background?

Judge Nancy Holtz
Sure. I did handle a number of construction cases while I was on the bench for a few reasons. First of all, in Massachusetts we don't have a specialized session for construction cases so all judges in civil sessions sit on all kinds of cases, including construction. So sitting in a busy court, like Suffolk Superior Court in Boston, there were a lot of construction cases that made their way into my session.

When I say construction cases, I would also include the accompanying frequent insurance coverage dust-ups that we all know frequently go hand in hand with construction disputes. And also a lot of construction cases, we all know they start out with jury claims, but many times the parties through their attorneys decide a bench trial makes more sense, and so those cases gave me a real firsthand seat and tutorial in construction law.

I guess I'd say lastly is I did find, and I do find, construction cases extremely interesting and challenging, and so as a result I ended up getting specially assigned on more than one occasion, and flattered to say by request of counsel on both sides to preside over specially assigned complex construction cases.

David Suchar
Do you think that that perspective has helped you now as a construction mediator?

Judge Nancy Holtz
Oh, definitely. I think that because I learned construction law from the bench as basically from a neutral seat, I've come to mediate in construction cases now truly and solely from the perspective of a neutral. I don't come from a certain perspective, such as someone who maybe either currently or in their past mainly represented a certain stakeholder group, owners, design professionals, et cetera. So I think that this 100% neutral perspective is appreciated, quite frankly, by a lot of your listeners' clients. I know that parties in mediation can sometimes be wary, skeptical about whether a mediator comes to their case with an angle or a take because of their background or because they either do presently or have in the past represented a certain kind of stakeholder.

David Suchar
How did you first get into mediating?

Judge Nancy Holtz
I would say that overall when I left the bench I felt that I had the skill set that makes for a successful mediator. My judicial experience was a great jumping off spot because having been on the bench, you have to absorb and distill complex, dense factual and legal issues. You've got to be a good listener and you have to know how to ask probing questions.

But beyond that, what drew me to being a mediator was that I like people. I like to interact with the attorneys and their clients. I get a great deal of satisfaction in being able to connect, not just with the counseling room, but with the parties directly and chat with them and interact. And I love to see their satisfaction when I'm able to settle a case that they never thought they would get resolved.

David Suchar
How does it work at JAMS in that do you have a particular area of focus in your mediation practice or do you do a variety of different mediations?

Judge Nancy Holtz
I do a variety of different cases, but like many neutrals at JAMS, we have certain areas that we seem to gravitate towards or gravitate towards us. And so one of the areas of my focus at JAMS is construction cases. I'm part of the JAMS global engineering and construction group. Again, as I've mentioned, I find construction cases and those related insurance coverage issues to be really interesting, and they're challenging and really they're populated with incredibly talented, great attorneys like your listeners.

David Suchar
I've mediated with you I think a couple of times last year in Boston, but I thought to ask you some general questions about what we're going to talk about today. So as I understand it, you'd like to talk to us about the role of timing in mediations. Can you elaborate on what that means?

Judge Nancy Holtz
When I read articles, listen to podcasts, watch videos talking about best practices in mediation, what strikes me is that we all talk a lot about the mechanics of mediation. There are a lot of discussions on what moves to make when negotiating, how to engage in bracketing, how to use mediators' proposals. So again, there's a lot said about the what and the how regarding mediation, but I feel that there's one really important factor that is really overlooked and that is the when.

David Suchar
Timing, you're saying, is an important variable to you as a mediator.

Judge Nancy Holtz
I believe so. I think that being a good mediator, it sounds kind of funny, but it's a lot like being a good comedian. A sense of timing is crucial. The really great comedians, when you think about it, they don't just tell the joke. They know when to deliver that punchline. And I know I'm probably dating myself, but I would say think Johnny Carson. Similarly, in the same way that timing is crucial to delivering a successful punchline, so too a good mediator has to know when to strike, so to speak, in the room. For example, a good mediator has to know when to ask those pointed questions of a party about weaknesses in their position. You have to know the timing when it's right to urge either or both sides to make certain moves, and this is where I believe strong interpersonal skills are crucial. You need those skills, together with just good instincts, just to know when the time is right to make certain moves, say certain things in the mediation.

David Suchar
So timing is important for the mediator. Is it also important for the attorneys and the parties involved?

Judge Nancy Holtz
I think definitely, and I'm sure that you know, and I would say having mediated with you that I know that you know that timing is important. You can come into a mediation with some plan, some thoughts, some views, but you cannot approach a mediation in a formulaic manner. Too many attorneys, I believe they come to a mediation, they've got a rigid game plan mapped out, and they just refuse to appreciate that the mediation day, it's a dynamic fluid process and you have to sometimes look beyond your game plan and say, "Now the time to make a bold move," whether it's a decrease as a claimant or an increase as a respondent.

David Suchar
Might you give us some specific examples of how timing might affect the mediation?

Judge Nancy Holtz
Well, there are just a lot, but I can certainly touch on a few. But I would say just as a caveat, there's really no bright line rules here as to timing. A big part of timing, whether it's the mediator or counsel, it's just being able to read the room. I believe you need to learn how to pay attention and listen to what's being said, and quite frankly listening to what's not being said because a lot of times that speaks volumes about the other side's view of the case or where they're coming from. So those things are important skills to bring to a mediation.

David Suchar
I mediate cases a lot. I think that's probably the bread and butter of a lot of the lawyers in our audience. What types of information would you as a mediator like to see shared and when?

Judge Nancy Holtz
I like to have complete descriptions of the claims and defenses shared as much in advance as possible. I think that the sooner I have it, the sooner I can start to digest it and the other side as well. As far as the legal part of the shared information, unless you're really advancing a novel theory, I don't think that I'm looking for long string citations. And you can believe that the other side knows the law as well as you since the Construction Bar tends to be a highly knowledgeable group, so less is more when it comes to that part. But since I like to have pre-mediation calls with each side, it's really a lot more helpful and fruitful if I can get those materials first and review them before I have that conversation so we can have a really good talk.

David Suchar
I know you have the pre-mediation calls, and I think those are very helpful. Is there any specific information that you'd like to see the two sides sharing before they get into the room for the mediation?

Judge Nancy Holtz
Beyond the claims and defenses that, the bread and butter type discussion, in a perfect world, depending on the type of case, I would love to see an insurance coverage matrix so I can understand the interplay among the carriers. Sometimes I've come into mediations and I have to say I'm surprised when parties are asking really raw, basic questions about what the coverage picture is. And that's really something that should get ironed out, if at all possible, ahead of time. And for myself, I am not too proud to ask really dumb questions when I'm talking to someone such as yourself that you eat, sleep, and drink insurance coverage, and so it's a great opportunity for me if I can see what the insurance landscape looks like to be able to ask questions that help me when I end up in the mediation room down the road.

David Suchar
I found that process working with you to be very helpful, and also we talked about the different participants from each side in the mediation. Is that something that you commonly ask lawyers about?

Judge Nancy Holtz
Always ask lawyers about this. There are a lot of things that attorneys will share in a phone call that they are not going to reduce to writing. I think we've all had the situation where there's a conversation and an attorney might say to me, "Judge, just so you know, at some point I might need some help in my room," or attorneys might want to be candid and say, "The opposing counsel and I, we have gone hammer and tong, and we do not get along."

Conversely, sometimes I have heard attorneys, they will say to me, "My opposing counsel and I, we get along great, we work together all the time, but our clients just are spitting nails at each other," and so those are the types of things that are helpful. And quite frankly, I want to know who the players are in the room, who the power player is, because a lot of times it's not just the person when you get to the mediation day, it's not the person who talks the most and the loudest. That's not necessarily the person who is the real power in the room, so I can get that kind of information ahead of time and that helps me.

David Suchar
Those are things that often we as lawyers aren't going to talk about in front of our clients, so I think it is helpful to discuss those things with the mediator beforehand. What about when there is information shared on the mediation day, is timing important in terms of when mediation is shared once we get there?

Judge Nancy Holtz
This can sometimes be a tricky situation, and I think we've all been in a situation when on the mediation day one side or the other presents some significant new information and they haven't previously shared it with the other side. From a timing perspective, this can be really counterproductive because you always have to bear in mind that when a claim rep comes to the mediation, he or she has since written up an evaluation and they've sought authority back at the mothership and they've come to the mediation armed with a certain amount of authority.

And so if you spring something, a claimant springs something significant and helpful to you on the mediation day, there's really not a whole lot the claim rep can do with that information because had they known it ahead of time, that might have changed their view of what kind of authority they wanted to come with. So holding back potent information and dropping it on the other side on mediation day, it can be problematic.

David Suchar
You're not saying though that we need to share everything at the mediation, right? There's some information that it may be helpful to not share with the other party, I'm sure.

Judge Nancy Holtz
Absolutely. I think there are a lot of times when there's information that you might actively wish to withhold. And as a mediator, I talk to counsel whether or not to share certain information. That's the beauty of the confidentiality of mediation is many times I've had attorneys tell me something and they'll say, "Judge, this is just for you, but please do not share it with the other room," and they'll tell me something, and we'll discuss whether or not is this something we want to bring into the other room or not.

I usually encourage, generally speaking, full disclosure of all information, but certainly there are circumstances when the timing might not be right. And probably the best example I would give is if it's very clear that this case is going nowhere, it's never going to settle today, then I'll talk to the attorney and say, "Well, maybe the timing isn't right to share that little bombshell that you have." In other words, why would you want to telegraph your punch in advance of a trial or arbitration if the case is just never going to settle today anyway?

David Suchar
Judge Holtz, when we come back from the break, let's talk a bit more about the sharing of information and the timing of sharing that information in mediation.

David Suchar
Welcome back to the podcast. When we broke, Judge Holtz, we were talking about timing and mediations and when to give out certain information. Sometimes in mediations I've seen, and I'm sure you've seen this too, a party that hangs on to a position that I think everyone knows can't possibly be valid, yet there's a lot of time that's wasted on it. Is there a time when attorneys should revisit their positions and maybe concede a claim or a defense?

Judge Nancy Holtz
Absolutely, and I think you've hit on something. Holding on to a position just too rigidly for too long, it can be a problem. And you as the attorney, you need to know when to let go. And always be mindful that that's why you've come to mediation, that benefit of confidentiality. It's to make it risk-free. You can concede a point just for purposes of the confidential mediation just so you can move on and focus on your strong points and keep things moving.

In construction cases, counsel are generally willing to share their memos with the other side and at some version of their position. But let's face it, you each give the other one in mediation memos, they are buying into me, as well as the mediator, the mediation memos are by and large advocacy pieces, and it's rare that I see a candid discussion and exposition of not just the strengths of your case but also the weaknesses of the claim or the defense.

But when you're at the mediation, there usually comes a time for some level of candor with the mediator, and in fact with the other side, in order to get a case settled. I get it that it's in your DNA as attorneys to be advocates and to hold your position at all costs, but there comes a time when you need to move past or let go of a weak position in order to have a powerful discussion of the settlement value of the case focusing on your strong points, the case, the claims that do have merit.

David Suchar
And if you do make such a concession, what are the benefits to conceding a point during a mediation?

Judge Nancy Holtz
I think that a well-timed concession on a factual or a legal point, obviously just for purposes of the mediation day, it doesn't just avoid needless discussion of a needless issue if you're talking about how you are going to get punitive damages but no one really thinks that's going to happen. Get past it because it saves time, but also it's a really big credibility buy in the other room when I can go into the other room and say, "Look for today, we're not going to talk about this particular issue because I think that counsel knows that there's some real challenges there." It's confidential.

David Suchar
Can you give us an example?

Judge Nancy Holtz
Yeah, I can. Actually I recently mediated a construction case in which the plaintiff had three buckets of damages, and the last one was what I think could fairly be described as an iffy delayed damages claim. And the original demand included a pretty hefty number for those delayed damages, but there was no getting around it. It was absolutely the weakest part of the damages claim. And in that case, the plaintiff's attorney, I thought very wisely, he could see that it was dragging down the rest of his case for negotiation purposes and he abandoned it, so to speak, and said, "Let's just not talk about that today. Let's just focus on the first two areas," and it was a smart move.

If you have a weak claim, the other side's not going to put a lot of value on it anyway. They're not going to monetize it, so why waste your time? So should you bring all claims, even ones that you may feel are on the weaker side? Absolutely bring the claim, make the demand, sure, but you've got to know when it's time to let go because once you shed the weak component of your damages and it's pushed off to the side, now you can focus on the parts of your case that are powerful, that are strong, and that will help move towards a settlement.

David Suchar
That makes good sense. In terms of the negotiation process, we've just talked about conceding some information or a claim, what about the idea of bracketing? Many times either we or the other side propose a bracket during a mediation. Is there a good time to begin pursuing that route?

Judge Nancy Holtz
That's a tough one. There really is no hard and fast rule. Sometimes when there's a huge gulf, I mean that tends to be when to me brackets are at least worth putting on the table, there's a huge gulf between the parties positions, neither side wants to take the leap of faith and make a big enough move to get things going, and I find a proposed bracket can help kickstart things. Quite frankly, even when one side or the other says to me, if I propose a bracket, sometimes one side or the other might say, "Well, Judge, it's too early for a bracket," I find that even having the bracket conversation in either or both rooms, it can be of assistance to me in at least understanding the zip code of where you see the case settling.

But as always, this requires timing and a sense based on what you're seeing, what you're hearing in the room. I wish I could give you a magic formula like now's the time for a bracket, but it's just a sense that I think we all develop, your listeners as the attorneys, working with a trusted mediator that something has to give. Things are stalling out in the negotiation, maybe this is the time to talk brackets. And again, you've got to be mindful of that timing. For me as the mediator, I really want to urge either or both sides to toss this script out the window and say, "Now's the time. Let's do something different. Let's switch it up."

David Suchar
What about mediator's proposals? We see them being used a lot, often at the end of the mediation. Is there an optimal time for the mediator's proposal?

Judge Nancy Holtz
I think this is one that's not absolutely written in stone, but I think you referenced at the end, and I think that is the right time. It's when the parties are truly hitting an impasse. I think that if a mediator mis-times this and steps in too quickly with a suggestion, proposes a number, starts putting price tags on the case, he or she will be seen as being too evaluative. And even worse, the parties think, well, gee, she's leaning towards the other side.

So I think that attorneys need to be cautious in asking a mediator to weigh in. And I think that seasoned mediators know to move carefully before injecting themselves into that process. It really should be the last resort. To me, I mean a mediation, there's an arc to the day. If you get impatient, whether as the attorneys, the parties or the mediator and you interfere, you become third man in as a mediator, it can really mess up the negotiation and that's something that really should be held for the end of the mediation.

David Suchar
We've been talking about the numbers, which is the headline that people often want to talk about in mediations, but what about discussing the non-monetary terms, rework in the construction area, other things that can be done on a project that don't necessarily boil down to a price tag? When's a good time to start talking about those things?

Judge Nancy Holtz
I think that you rightly described the money part of a case as the headline, and that's true, but a lot of times there are non-monetary terms and many of them can be bread and butter things that are non-controversial, but sometimes there can be some non-monetary terms that are going to require some discussion. I like to get the terms on the table from the start so down the road if we start to get some momentum on the money talk, there's not some non-monetary term that derails things later.

But sometimes the party might suggest when I ask, "Okay, here's your demand or here's what you're putting on the table. Any non-monetary terms?" One side or the other might say, "Well, Judge, let's get to a number first, then we'll talk about the non-monetary terms later." The problem with that is that I might be hearing in the other room that there is a specific non-monetary term that's very much desired or a non-monetary term that is feared and it will be a real deal breaker. And so when that happens, I do need to discuss the timing of the non-monetary terms. One side wants to table it. The other side wants to tackle it. And when that happens, I need to find a way to firmly but diplomatically get the parties on the same track talking about non-monetary terms timing-wise.

David Suchar
How about the timing of the offers and demands themselves? How does timing affect making demands and offers and in what amounts as you go toward an ultimate hopeful settlement amount?

Judge Nancy Holtz
You've asked the most important question, and it's probably the most difficult to answer. It's really helpful for you, for counsel to work with a mediator that you trust because what I hear as the mediator when I go in and try to get one side or the other to do something, each side says to me, "Why should I make a big move when they're still so high? Why should I make a big reduction or an offer when they're still so low?" But there comes a time when working with the mediator, you simply have to decide it's time for you in your room to make the big move.

It's my intention to make sure that the parties don't negotiate themselves into the elevator prematurely by just refusing to move past an artificially high or low position. What I'm trying to do at a mediation to me working with the attorneys is provide an opportunity to settle. And that requires, again, people moving past their comfort zone and deciding I can't be looking at the other room and what they're doing. I need to focus. It's time for us to make a move.

David Suchar
How do you convey to both sides that the mediation day is the time for urgency, is the time to settle the case?

Judge Nancy Holtz
Sometimes I come right out and say it, quite frankly, to the parties in particular that there are a lot of studies and surveys done, but I think that, and the statistics are different, but I think that we pretty much all agree that most of the studies tell us that about 95% of civil cases never go to trial. So the fact is we know that it is more likely than not that the case that's being mediated will eventually settle, so why not today? So the mediation day is that opportunity, and I think that we, myself as the mediator and counsel on behalf of your clients, we owe them, that they need to be able to take advantage of this opportunity.

But if you approach bargaining in this formulaic way, forgetting about your goal, you're there to settle the case, if you get caught up on the artifice on who's done what moves, and I hear it in both rooms, "Well, they only move 10%. We moved 18%," or, "We moved X dollars and we're going to move lockstep." If you get yourself all tangled up in these artificial devices, you forget what the goal is. The goal is to create an opportunity for your client to have an alternative to the huge expenditure. And I'm not talking just dollars, but heat loss expenditure if you have to go forward into an arbitration or into a trial.

David Suchar
You must deal with a wide range of attorneys and parties in terms of their skill and experience and even stubbornness. Are some attorneys or parties simply bad at making the big moves even when they're necessary and even when they're called for in mediation?

Judge Nancy Holtz
Oh boy, absolutely. Some attorneys, and the clients, they just are absolutely incapable of making big, bold moves. They just want to spend the day just grinding it, so fearful of jeopardizing their position. But the fact is what moves you make and what you do isn't really going to alter the other side's view of the settlement value of the case anyway. And so what will change things is the timing. So sometimes you just have to decide now is the time because if you make a big move, that can affect the tempo, the momentum, and ultimately it will have an impact on whether or not you successfully seize that opportunity to settle a case.

So again, as I mentioned earlier, instead of calculating how much the other side moved versus how much your client moved, just consider whether it's time to move off your solely aspirational numbers, whether you're the claimant or the respondent, and move into a range that'll be a more combustible zone of settlement.

David Suchar
How do you get the more stubborn, recalcitrant party to recognize that the timing is right to seize the opportunity to settle?

Judge Nancy Holtz
It's a tough question, and like I've been saying, it really helps to work with a mediator that you like and that you trust. When either or both sides are refusing to move at all and they're just dug in, sometimes I'll be in one room or the other and I'll come right out and say, "Hey listen, if you have a big move in you, now would be a really good time to make it. And it's hard to do, and I know that I'm pushing you and your client past your comfort zone."

And this is where, like I've said, mediation, it's like comedy. You've got to deliver that punch line at the right time. You need to have the willingness and the confidence in yourself as the attorney to make the bold move. I can't tell you how many cases have settled when a claimant suddenly just makes a huge reduction or a respondent suddenly just puts a pretty big amount of money on the table. All of a sudden it just gets things going, and that's when the case moves into that combustible zone where a settlement usually becomes inevitable.

And I would just say lastly on that, you have to remember when I'm saying to you, "Gee, now's a good time for you to make a big move," bear in mind that I'm in the other room as well, so I may know something. I may know that if you were to make that big reduction or that big offer, the other side's ready. They're ready to reciprocate. It's my job as the mediator to help you with that timing, give you some advice.

But for me to help you, there needs to be transparency with me. Playing the mediator, holding me at bay won't get your case settled. And you almost have to remember my sense and when I'm urging you with regard to timing, like, "Geez, now's a good time to make a move," you always have to bear in mind that what I'm telling you it's informed not just by what you are saying to me in your room, but I'm hearing things in the other room as well that inform my view.

David Suchar
I ask guests this sometimes, and I'm going to ask you this question, what trends do you see, and maybe in discussions with other mediators that you work with, what trends are you seeing in terms of timing or expectations during mediations?

Judge Nancy Holtz
I'm not sure if I would call it a trend, but maybe I would think that what I see is that the counsel on behalf of their clients in these cases, they really want a level of evaluation. And even though mediation, it's voluntary and the mediator is not there to evaluate the case per se, I think we've moved past the days of mediators just being facilitative and just basically just bringing the positions of the parties back and forth and facilitating the discussion.

I feel that what the market wants now, including, and perhaps even especially in the construction world, is they do want a mediator to weigh in and not just bring in what the other side thinks or what you think, but rather, "What do you think, Judge? We're making this argument. We're making this defense. What do you think of that position?" And I think the trend seems to be attorneys fully expecting and wanting to see mediators being a little bit more muscular in how they discuss the case, the strengths and weaknesses of the case.

David Suchar
That sounds right. I think you're right that the role of the mediator is probably becoming more important in that way in terms of being more evaluative in addition to just shuttling demands and offers back and forth. You've given us a lot of good food for thought, Judge Holtz. Are there any takeaways or general advice you can give to us so we take advantage of the right timing at mediation?

Judge Nancy Holtz
I guess I would just end with something that's been limbed through this discussion. I know that you all come to mediations with your position staked out and you all have a game plan, but don't become a prisoner of that plan. You've got to be flexible and you've got to be bold. Work with the mediator, read the room, and just watch for the right time to make your move. Sometimes you need to toss out that game plan and you just got to make a game day decision.

David Suchar:
I speak from experience here, Judge Holtz, in saying that you are an excellent mediator and you've also been a great guest. Thank you so much for joining us on the podcast.

Judge Nancy Holtz
Thank you for having me. This has been a lot of fun. I love to talk about this stuff. And as I mentioned, I'm a big fan of The Forum as a resource, and this podcast is obviously a great way to keep the conversation going about best practices in mediating construction cases. So it was great being here and hopefully I'll get a call back.

David Suchar
Thank you again. That would be great. Thank you, Judge Holtz.

Announcer
You have been listening to Construction Law Today, the podcast of the American Bar Association's Forum on Construction Law. All rights relating to this podcast are owned and controlled by the American Bar Association. No reproduction or reuse of this podcast is permissible without the express written consent of the American Bar Association. For more information about Construction Law Today, or if you have any questions or comments, you may contact our host, David Suchar, at david.suchar@maslon.com. Our podcast is produced with the assistance of Peak Recording Studios in Bozeman, Montana. Thank you for listening and look for our next edition of Construction Law Today.

Throughout the podcast, David and Arlan discuss the Forum and the pivotal role the organization has played in Arlan's career.

Listen to this episode below.

David began hosting the ABA’s “Construction Law Today” podcast in 2022. Additional podcast episodes can be found here.

INTERVIEW TRANSCRIPT

Announcer
This is Construction Law Today, the podcast of the American Bar Association's Forum on Construction Law. Construction Law Today is a podcast about current topics in American construction law. Your host for Construction Law Today is David Suchar.

David Suchar
Our podcast, Construction Law Today, began in July 2019 and is now in its third season. In our first two seasons, my good friend Buzz Tarlow produced 25 episodes on a variety of timely and interesting topics in the field of construction law. In our upcoming season, I expect to produce similar podcasts at the rate of about one new podcast per month. As always, I welcome your questions and comments. Please let us know what we can do to improve the podcast. The contact information for Construction Law Today is found at the end of this podcast. On behalf of the American Bar Association's Forum on Construction Law, thanks for listening.

Welcome to the podcast. Our guest for this podcast is Arlan Lewis. Arlan is a partner and construction lawyer at Blueprint Construction Counsel based in Birmingham, Alabama.

Arlan recently served as chair of the ABA Forum on Construction Law. We spoke together at the 2024 Forum Fall Meeting in Pittsburgh about Arlan's journey in the Forum and what the organization has meant to his great career. Arlan, thank you for joining us today.

Arlan Lewis
Glad to be here. Thank you, David.

David Suchar
So, Arlan, tell us about how you first became involved in the Forum.

Arlan Lewis
I first got involved in the Forum because I was at a big firm. I worked with Bradley for a number of years. That's where I started my construction law career. And the Forum on Construction Law was one of the first organizations that was recommended to me by the senior partners that I should join and be involved in. I believe my first Forum meeting, sort of Forum interaction, was the regional Sticks and Bricks program. Don't ask me what year that was, but it was eons ago and at the time I had been to one or two other construction law seminars put on by some other organizations, and when I saw Sticks and Bricks, it just became apparent to me that the Forum was the right place for me to sort of gain this education.

And the more I went to Forum events, it sort of solidified my thought that, OK, this is the kind of information that I need as a young lawyer and the quality was first class. So that sort of sold me on the Forum for the value that it provided from an educational standpoint.

David Suchar
What is it about the Forum that kept you coming back from your first few meetings to all the way going through as you became a leader in the organization?

Arlan Lewis
Well, initially it really was about the content. As most busy young associates, particularly in large law firms, you're trying to figure out your place in the world. You're trying to learn how to be a lawyer, learn how to be a construction law firm. Learn construction. So, I didn't focus so much on the interpersonal connections at that time. And for many years, I came to the Forum, spent my break time in my room working, spent my evenings in my room working, because that was really the focus. So, I really didn't branch out and get a chance to meet a lot of people. That was a big mistake. I wish I had started forming those social connections earlier, but you don't know what you don't know.

So as time went on and I started to meet more people and get to know them, then it became about people. I was excited to come back to the Forum meeting, not only for the content, but because I enjoyed the people that I met and the connections that I made. And then the next step is from sort of getting to see those people again to getting to work with those people on Forum projects. That's where the bonding really happens. When you're in the trenches working with someone, you don't want to let them down because that's your friend. And so, you get in the boat, and you row the same direction.

And once you get started, once you volunteer for something and do a decent job at it, you get more opportunities as more people get to know you, as the leadership gets to know you. Opportunities present themselves, particularly through your division involvement.

David Suchar
Tell us about your path to becoming chair of the Forum, from involvement in a division to the other things that you've done.

Arlan Lewis
The first national meeting that I attended, I remember very distinctly. Ava Abramowitz introduced herself to me, and in talking to me, found out that my background was in architecture. And immediately she said, OK, come with me. You're going to Division 3, which is the design division. And being obedient to Ava, as most people are when she asks you to do something. I went to a Division 3 meeting, and of course, there's lots of design, and so that's where I got to know some people. But at that time, again, I was a young lawyer, so I really didn't get involved in Division 3. And additionally, my construction practice was one where I represented entities except architects and engineers. But I joined several divisions. You're allowed to join as many divisions as you want, the four. So, I joined several.

And I would see the emails and meet different people from divisions while I was here. Ultimately, I decided to get involved in Division 4, which is project delivery systems and construction technology. And that's really where I sort of started my Forum leadership journey, for lack of a better term. I started by going to the meetings, the lunch presentations, and then I was put on the working committee, started to accept some assignments and dealing with Division 4 from the working committee. Eventually, I made it to the steering committee. And one of the ways that I got involved in Division 4, outside of just doing the work, was the person who had planned the dinners was formerly the chair. I think it was Tom Rosenberg at that time. So, Tom was very social. He knows everybody. He loves to plan these great dinners.

His successor was not so much interested in that. He had lots of other things that he did. And so, I stepped up and said, well, I'll plan the Division 4 dinners. In doing that, I got a chance to know more of the Division 4 members, got a chance to interact with leadership more. So, I was on the steering committee for a while and then was selected to be chair of Division 4. After serving my time as chair of Division 4, I submitted my application for the governing committee and was fortunately chosen for that. After two years governing committee, I was asked to chair the division chairs division. It's a lot of repetitive words, but I was chair of the division chairs. And so, I did that for two, three, four years, something like that. Time all melds together.

And after that, after some cajoling and some serious thought about the time commitment involved, I decided to put my name in the hat for chair and was fortunately selected for that.

David Suchar
We were all lucky to have you as chair of the organization. Tell me from the roles you had in the organization before you were chair, what was your favorite? What was the most memorable?

Arlan Lewis
The most memorable, aside from being chair, would be chair of division chairs. That was one. It was a lot of fun. I knew a lot about Division 4, but when you're chair of chairs, you get to know the division leaders intimately and you get to understand that different divisions have different personalities, different challenges, different strengths. And they really are. I mean, it's amazing how different they can be, but they're all very valuable to the Forum. I really enjoyed that interaction. And in that role, I got a chance to deal with the staff a lot more.

Because you're trying to coordinate and make sure that the divisions, with all of their different ideas and different personalities, don't inadvertently violate some ABA regulations or get too far off the rails or find themselves going in a different direction than the Forum leadership is trying to take the entire organization. I really enjoyed that role.

David Suchar
Throughout your very active involvement in the organization over the last decade or more, how would you say your involvement in the Forum has impacted your career?

Arlan Lewis
It has probably been the most impactful thing in my career, aside from obviously servicing clients on a regular basis. And I say that for a couple of reasons. One, the network is invaluable. Even before you're in a leadership position, occasionally you get an email from someone that says, hey, I need a construction lawyer in Alaska. And for me to be able to respond and say, oh, you should check with so-and-so, they're in Alaska, that literally came up. And one that sends a signal to your firm that there is value here. Because when you have a personal relationship and you can refer someone personally, it means a little bit more than just doing an internet search and sort of randomly selecting somebody who says they have construction experience. So that's one way, the network.

The network has also led to, over the years, referrals. Whether it's because people have an issue in Alabama, where I am, or they have a client that's doing work there and they need some help, I've been happy to help when I can, and it means something for them to make that referral. Likewise, if they are conflicted out on something. I've gotten those calls too. Recently I was having a conversation with somebody and I said, just about every matter that I'm dealing with on my desk right now has some connection to the Forum. Some have come directly from Forum referrals. Others, people who used to be involved in the Forum have moved on to whatever, and something comes up and they say, oh, yeah, I remember I knew a construction lawyer in Alabama, and he seemed like a pretty decent guy.

So it has really been valuable in that way. Finally, and perhaps most importantly, is the relationships that I've developed with people. Some of my best friends are Forum regulars, and there are people that I met in, you know, either speaking or whatever role. We've had a chance to work together, and it really cements that bond. So, I look forward to coming to the Forum meetings, not just for the CLE, but really to connect with colleagues. You can talk shop, but you also just develop friendships. And I say that I could probably go anywhere in the country and there's somebody I could call for, at the very least, dinner recommendations. And in most cases, not only am I calling for a dinner recommendation, they're like, oh, we're going to have dinner. I'm going to take you to dinner. You come out to my house.

I've stayed at the homes of various Forum members when I'm traveling. Every now and then, if I'm traveling to play golf, that's another connection. But it really is beyond just construction law at that point. It's personal.

David Suchar
I've always liked the idea that we have connections that we make here in the organization, and then as you go out and practice, some of those people are involved in the cases you're involved in. Kind of extend those relationships both ways.

Arlan Lewis
It makes a huge difference. When I get a matter, if I've got a Forum lawyer on the other side, it makes a huge difference. The tone of the discussion is completely different. We both obviously zealously represent our client's position, but there's a civility that is, I think, inherent in dealing with someone else that's in the Forum.

David Suchar
I agree.

Arlan Lewis
One, you know that you're going to see them again, and so you don't want to be that guy or that girl.

David Suchar
Right. You know, you'll be talked about.

Arlan Lewis
Exactly. And you have a mutual respect. You know that they know construction law, because I know all of us have at some point dealt with someone on the other side, maybe a very good lawyer. But construction law is not their specialty, and sometimes that can be a bit of a challenge as they climb that learning curve. So, whenever I hear that a Forum lawyer is on the side, it's a little bit of a relief. And I think it's a relief to the client because you express that to the client. Look, I know this person, and it just gives you more credibility. And like I said, the matters seem to go a lot smoother in my experience.

David Suchar
That makes great sense, Arlan. Also, I think having access to an interaction with the mediators and arbitrators that are some of the most important people in the industry through this organization, I found that to be a benefit. I'm guessing you have too, for sure.

Arlan Lewis
I mean, it's very rare that we get a list of panel arbitrators on a national level where, I don't know, out of the 10 that are submitted, I know at least six or seven, primarily through the Forum connection. Same with mediators. We always get asked the question, all right, we need a mediator. They don't have to be local; they don't have to be from a particular state. Who have you dealt with? Who do you know who's recommended? And it's amazing. I know so many of those potential ADR folks, and mostly through the Forum. And then if I don't, if I see some names, it's not unusual to say, hey, have you ever dealt with X or Y? And I can call on certain Forum friends to say, hey, have you dealt with them?

If they're from that state, obviously without revealing any confidences, but it's good to have that resource as well. Likewise, if you get a lawyer on the other side that's from a particular state, pick up the phone, call one of my Forum friends in that state and say, hey, have you ever dealt with this person? And it's amazing the feedback you get, and it's very valuable.

David Suchar
Do you think as you pursued Forum leadership and met more people through the organization that way, these benefits that we're talking about, they were magnified in some way? Did you feel that way?

Arlan Lewis
Absolutely. There's no substitute for a personal connection. At least that's my personal feeling. There's no substitute for having a personal connection. And so, whatever the context, and because of the unique, I call it the Forum special sauce, because of the unique nature of collegiality between all of us at the Forum, it's just, I don't know, civility is the word I keep coming back to. There's a respect and a civility in whatever kind of exchange there is.

David Suchar
People tell me that they've been to other ABA conferences not from the Forum, and they sort of ask me, why are you so involved in the Forum? Right? I had an experience with ABA. It just didn't seem like the thing I want to continue on with. What do you think separates the Construction Forum from other legal organizations, whether ABA or otherwise? What makes this organization special?

Arlan Lewis
I think because of its scope in terms of national and at some levels, international. The world of construction lawyers is pretty small. It's a pretty small pool when you think about millions of lawyers. So, you know that you're going to, or at least you very quickly find out that you're going to run into these people in some way, shape, form, or fashion, whether your practice is local or whether it's national, you find yourself coming across these people. So, you mind your manners, if you will, when you're dealing with them.

The other thing is because of the way the Forum is structured, the goal is for people to get involved, find whatever lane they want to run in. If you like to write, you can write articles, books, et cetera, if you like to speak, there are opportunities for that, but it's an up-and-out model. And so, you don't have leaders that are trying to hang on to their positions for, quite frankly, any longer than they are assigned. Because one of the things that makes the Forum special is the time and energy that every individual puts into whatever that task is, whether it's something as simple as writing an Under Construction article or it's presenting at a lunch presentation, working on a newsletter, preparing for presentation at a national meeting, thinking about the strategic value and direction of the Forum at every level, I have been not only surprised, pleasantly, but actually impressed. The amount of time, energy, and effort that very busy lawyers with very busy practices and very busy personal lives are willing to put into the Forum. And so, I think that's what makes it special.

It shows in the caliber and quality of the content, and I think it shows in those deep relationships because they're built in the trenches and everybody realizes, wait a minute, there's a lot of work that goes into this. So let me put my best foot forward. I think all of that coupled with the up-and-out strategy means that there's opportunity to grow. And I think that newer people to the Forum see that there are genuine opportunities and it's not a situation where, oh my goodness, I've been working at this for 15 years. I've been trying to do everything, but those people at the top just won't let go of the reins, right? No, no. By the time you get done, you're ready to let go of the reins.

David Suchar
So you've done everything in this organization, but there's a bunch of people outside of this room going to a conference that might be their first one or that might be one of their first few in the organization. What advice would you give to people who are starting out their journey on how to succeed?

Arlan Lewis
For starters, sometimes people don't like to wear the first-time attendee badges. But I think because lawyers sometimes just tend not to want to sort of stand out, particularly if it's their first time. I would caution against that. Please wear your first-time attendee badge. It is an invitation for others to come up to you and have a conversation with you, which usually leads to introducing you to other people if they find out what you do. That's really the first step and we try to do a lot. For first-time attendees, there's a special first-time attendee session. So, I really encourage people to do that because we know each other so well. It can be overwhelming to someone who's not already very familiar with the Forum or who comes, and they don't know anybody.

It can look like, oh my goodness, you know, this is a fraternity or it's a clique and everybody knows everybody except I don't know anybody. Wearing that badge, like I said, is an open invitation and I guarantee you many people will come up to you, and they will put their arm around you and say, hey, you're from so-and-so. Oh, well, you should meet so-and-so who's also from your state or, oh, you represent architects and engineers. Well, let me introduce you to so-and-so who does the same kind of work. So, I think that's step one. Make yourself available. And after that, the next step I'd recommend is learn about the various divisions and sign up for as many as interest you.

Yes, you may get several emails, but it allows you to assess what each division is about and figure out where you might like to start dipping your toe in the water and where you might like to start volunteering. But step one, we're not a clique, and we're not very cliquish, and we're very welcoming, and we enjoy welcoming people who are new to the organization. So, despite what it may look like, when you step in and see that everybody knows each other, it's an open invitation.

David Suchar
Arlan, just in closing, anything else that you would like to tell people who are considering joining the organization and participating in it?

Arlan Lewis
One of the things that I love about the Forum is that there's something for everybody. Not only your practices, we've got something specific for your practice. Whatever your personality is, there are others with similar personality traits. And, you know, you sort of find your tribe. I like to say, I, of course, love to play golf. And so really, that was one of the ways that I sort of got a chance to become known to the leaders, because at the time, there was a substantial number of GC members and other Forum leaders that would come in a day early for the conference, and they would have a golf outing, they'd go play golf, and then they'd kick off the regular meeting. So, I just started showing up a day early, got myself invited to go play golf.

And even though it was like, oh, my goodness, these are the GC members or what have you, they were as welcoming as could be. And that's how I got to know a lot of them. And as they got to know me and as opportunities for participation came up, they were able to say, Arlan, what would you think about doing this? Or you should do this, you should volunteer to do this or that. So that's one way. There are so many ways to get involved, and there's something for everybody. It's odd that an organization could be that, we'll never be all things to all people, but there's enough variety that I think you can find your tribe within the Forum.

David Suchar
I agree with that. Arlan, thank you so much for joining us today for this interview.

Arlan Lewis
It's been my pleasure. Thank you, David.

Announcer
You have been listening to Construction Law Today, the podcast of the American Bar Association's Forum on Construction Law. All rights relating to this podcast are owned and controlled by the American Bar Association. No reproduction or reuse of this podcast is permissible without the express written consent of the American Bar Association. For more information about Construction Law Today, or if you have any questions or comments, you may contact our host, David Suchar at David.Suchar@maslon.com Our podcast is produced with the assistance of Peak Recording Studios in Bozeman, Montana. Thank you for listening and look for our next edition of Construction Law Today.

Deregulation

Trump’s pro-business bent will likely mean reduced regulations and streamlined permitting processes for new construction, making it easier and faster to start large projects. Trump has also supported energy policy that favors fossil fuels, and is likely to put reduced focus on renewable energy projects. He has advocated for defunding the Inflation Reduction Act, which in part addresses greenhouse gas emissions but also provides tax credits for green energy projects.[1]

Infrastructure Investments That Favor Private Sector–Driven, Traditional Projects

Trump’s infrastructure policies favor private sector–driven projects and public-private partnerships (PPPs), as well as more traditional projects such as roads, bridges, power plants, and industrial and fossil fuel facilities. Based on his campaign statements, Trump may seek to defund Biden administration infrastructure programs like the 2021 Infrastructure Investment and Jobs Act ("ILJA"), which authorized $1.2 trillion for construction projects and other investments over a five-year period.

Proposed Tariffs Could Result in Near-Term Increases for Raw Material Costs

The domestic construction industry relies significantly on imported wood, iron, and steel.[2] Lumber imports, for instance, are expected to continue rising to 16.1 billion board feet in 2025.[3] These imported materials could be subject to Trump’s "America First" economic policy, which includes a proposed 10-20% across-the-board tariff on imports.[4] He has floated a separate 60% tariff on goods from China as well.

Immigration Policies Could Impact Labor Costs

Trump’s stricter immigration policies could impact the availability of labor in the construction industry, which relies on immigrant workers. While in office the first time, he suspended the H-2B visa program in the midst of the pandemic.[5] He has very publicly advocated for the increased deportation of undocumented workers. Such immigration enforcement measures could lead to labor shortages for portions of the industry.

Overall Impact

A second Trump term will likely mean less regulation, emphasis on the private sector, and more funding for and focus on traditional infrastructure and energy projects. It could also mean reduced focus on renewable energy projects, potential labor impacts due to stricter immigration policies, and potentially near-term higher costs associated with tariffs on imported goods.

We Can Help

Please contact Maslon’s Construction & Real Estate Litigation Group if you have questions regarding legal implications of the election for the construction industry.

Jevon is an experienced trial lawyer who works with clients in a range of industries, with a focus on assisting policyholders in insurance coverage disputes and representing stakeholders in construction and real estate matters. Jevon was named an associate fellow of the Construction Lawyers Society of America in 2022. He also serves on the Minnesota State Bar Association’s construction section council and the contracts committee of the Associated General Contractors of Minnesota.

David serves as vice chair of Maslon’s board of directors and executive committee member, and as chair of the Construction & Real Estate Litigation Group. He is a skilled trial attorney and former federal prosecutor who regularly represents clients in construction and insurance coverage disputes, government and internal investigations, and a variety of commercial litigation. David was elected in 2024 as a Fellow of the American College of Construction Lawyers. He is one of only seven Minnesota lawyers ranked Band 1 in Chambers USA for Construction. Who's Who Legal named him a Global Leader in Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." David recently served as national chair of The Trial Network, a professional network of trial lawyers from 24 leading law firms across the United States, including Maslon. He has developed a niche national practice representing commercial policyholders in insurance coverage disputes, including on many of the largest construction projects and claims across the United States.

To learn more, visit: 2025 Lawdragon 500 Leading Litigators in America.

Steve, chair of Maslon's Investigations & White Collar Defense Group, is a renowned trial lawyer with deep experience in high profile cases. He concentrates his work on high stakes criminal and civil litigation, government and internal investigations, and appellate practice. Steve is well known for his role as a pro bono special prosecutor in the trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd. A former federal prosecutor, Steve has defended individual clients in a wide variety of serious matters, including murder, drug, and white collar cases, and has represented businesses in high-profile investigations by state and federal entities around the country. Steve is ranked Band 1 in Minnesota in Chambers USA for White Collar Crime and Government Investigations, sharing that honor with only four other attorneys.

David chairs Maslon's Construction & Real Estate Litigation Group and serves as vice chair of the firm board of directors and executive committee. A skilled trial attorney and former federal prosecutor, he regularly represents clients in construction and insurance coverage disputes, government and internal investigations, and a variety of commercial litigation. David was elected in 2024 as a Fellow of the American College of Construction Lawyers. He is one of only seven Minnesota lawyers ranked Band 1 in Chambers USA for Construction. Who's Who Legal named him a Global Leader in Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." David recently served as national chair of The Trial Network, a professional network of trial lawyers from 24 leading law firms across the United States, including Maslon.

ACCL fellowship is extended to those who are found to have mastered the practice or the teaching of construction law and dispute resolution in the complex technical and legal fields pertaining to the built environment, whose professional careers have been marked by the highest standards of ethical conduct, scholarship, professionalism, and collegiality, and who have demonstrated a commitment to “give back” to the construction industry. Fewer than 240 other attorneys from the U.S., Canada, Britain, Australia, and France are Fellows in the organization.

Membership in the college is by invitation only upon nomination and election. Prospective members must be proposed for membership by a Fellow in good standing, seconded by at least two other Fellows who have personal knowledge of the nominee, and nominated by the Membership Committee. Their election by the Board of Governors is then ratified by the entire membership. To be eligible for election into the college, a lawyer must be admitted to practice law before the highest court of his or her respective state, territory, or country and have been actively and continuously engaged in the full time practice or teaching of law for a combined total of at least 15 years.

A trial attorney and former federal prosecutor, David has built a broad construction law practice. He negotiates and litigates significant construction negligence, lien, and payment disputes throughout the Midwest and has one of the top insurance coverage for construction practices in the country.

For example, in 2020, David settled claims brought against a large international structural engineering firm related to the $1.1 billion U.S. Bank Stadium Project—the largest construction project in Minnesota history. His niche national practice representing commercial policyholders in insurance coverage disputes has included many of the largest construction projects and claims across the United States. Recent matters include the LaGuardia Airport Central Terminal Reconstruction Project (NYC); Apple Campus (Cupertino, CA); Las Vegas Raiders (Allegiant) Stadium; SeaTac Airport; Long Beach International Gateway (Gerald Desmond) Bridge; Second Avenue Subway (NYC); claims on Millennium Tower, Transbay Transit Center, and Salesforce Tower (San Francisco); and the Florida International University bridge collapse (Miami).

David is one of only seven lawyers to receive the highest possible Band 1 ranking from Chambers USA in its 2024 guide for Construction in Minnesota. Who's Who Legal named him a Global Leader in Construction and described him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." Suchar has served in various leadership roles with the American Bar Association Forum on Construction Law, and in 2023, he was chair of The Trial Network, a national network of 24 leading trial law firms.

Jason and Evan represent a Class I U.S. railroad in disputes throughout Minnesota and North Dakota.

Jason represents clients from the construction, real estate, financial services, food, and railroad industries. He regularly appears in federal and state court on behalf of design-build firms, general contractors, architects, engineers, specialty contractors, suppliers, property management companies, real estate owners, and lenders. Recognized by Chambers USA for construction law in 2016-2024, Jason honed his trial and appellate skills before joining Maslon as a Naval Officer with the United States Navy Judge Advocate General's Corps.

Evan describes himself as a “death and dirt” lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Evan also maintains an active pro bono practice, with significant experience in environmental, administrative, and Government Data Practices Act litigation. Evan graduated first in his class from the University of North Dakota School of Law and served as a judicial extern to the Honorable Kermit E. Bye of the United States Court of Appeals for the Eighth Circuit.

Jason is a partner with Maslon’s litigation group who focuses his practice on representing clients from the construction, real estate, financial services, food, and railroad industries. Now in his 21st year of practice at the firm, Jason has been recognized by Chambers USA, Minnesota Super Lawyers, The Best Lawyers in America, and Thomson Reuters Stand-Out Lawyers for his legal skills and exceptional client service.

Also ranked in the new edition of Chambers USA:

• Jason Lien continues to be recognized for Construction in Minnesota, with Jevon Bindman newly recognized as an Up and Coming attorney in the same.
• Susan Markey is newly ranked for Corporate/M&A in Minnesota.
• Jon Septer is newly ranked for Real Estate in Minnesota.
• Bill Pentelovitch continues to be recognized as a Senior Statesperson for General Commercial Litigation in Minnesota.

The rankings are the result of extensive client interviews and research to assess technical legal ability, client service, business understanding, value, team depth, and other qualities most valued by clients.

To view Maslon's full Chambers USA rankings, go to: Chambers USA Guide 2024.

About Chambers and Partners
Since 1969, London-based Chambers and Partners has published world-famous guides to the legal profession. A team of more than 200 editorial and research individuals conducted thousands of one-on-one interviews with in-house counsel and third-party experts for the 2024 edition of Chambers USA: America's Leading Lawyers for Business.

For All Businesses

As of July 1, 2024, all employers are subject to liability if they:

1) fail to classify, represent, or treat an individual as an employee under local, state, or federal law;

2) fail to report or disclose to a local, state, or federal agency a person as an employee when required; or

3) require an individual to enter into an agreement that misclassifies them as an independent contractor.

In addition, there are significantly higher penalties for employers for misclassifications as well as individual liability for owners, officers, or agents who knowingly or repeatedly engage in the above activities. There is also a new provision providing successor liability for misclassifications, as well as a private right of action.

For Construction Businesses

Effective March 1, 2025, a new 14-factor test will determine whether an individual is an employee or an independent contractor. The test focuses on whether the individual is operating a separate business entity and whether the contractual relationship is a legitimate business-to-business transaction “at the time the services were provided or performed.”

Among many other requirements, an independent contractor needs to operate under a written contract that is signed and dated by both the independent contractor and the person for whom services are provided, and needs to provide for compensation on a commission or per-job or competitive bid basis and not on any other basis.

The new 14-factor test covers both the public and private sector and applies to all commercial or residential construction or improvement services with exceptions for certain landscaping services.

New Intergovernmental Agency Cooperation

The new law also includes the “Intergovernmental Misclassification Enforcement and Education Partnership Act,” which will allow five agencies to coordinate and share information relating to alleged misclassifications. The five agencies included are: the Department of Labor of Industry, the Department of Revenue, the Department of Employment and Economic Development, the Department of Commerce, and the Attorney General in its enforcement capacity.

We Can Help

If you have questions about how to protect your company’s business interests in the midst of new legislation or other issues, please contact Maslon's employment and construction attorneys.

The webinar is presented in conjunction with the publication of the ABA Construction Forum's newly updated Construction Defects book, of which David is lead co-author.

David serves as vice chair of Maslon’s board of directors and executive committee and as chair of the Construction & Real Estate Litigation Group. He is a skilled trial attorney and former federal prosecutor who regularly represents clients in construction and insurance coverage disputes, government and internal investigations, and a variety of commercial litigation. Who's Who Legal ranked David as the top under-45 construction lawyer in the United States, describing him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." (Ranked in 2023 as a Global Leader in Construction.) Chambers USA (ranked 2018-present) published client commentary describing David's strengths as "mastery of insurance, understanding the construction industry, exceptional writing skills and aggressive negotiation." David has developed a niche national practice representing commercial policyholders in insurance coverage disputes, including on many of the largest construction projects and claims across the United States.

David’s leadership in the profession includes serving as host of the ABA Forum on Construction Law's podcast, "Construction Law Today," and as a steering committee member for the forum's division on insurance, surety, and liens. In addition, he was lead co-author for the insurance chapter in the ABA's decennial Construction Defects book (2021) and authored several insurance chapters in the ABA’s Construction Checklists book (2022).

The POWER 30 is a feature that examines the power brokers who lead and influence the Minnesota legal community, with a focus on those "whose mere presence on a case signifies the stakes, who have influenced the direction of the law, whose leadership in the community is pervasive, and whose respect within the bar is undeniable."

To read the feature, go to: Minnesota Lawyer, "The POWER 30: David Suchar" (subscription required).

David is a skilled trial attorney and former federal prosecutor who regularly represents clients in construction and insurance coverage disputes, government and internal investigations, and a variety of commercial litigation. Who's Who Legal ranked David as the top under-45 construction lawyer in the United States, describing him as "an impressive trial lawyer whose practice spans the spectrum of construction matters from insurance to payment claims." (Ranked in 2023 as a Global Leader in Construction.) Chambers USA (ranked 2018-present) published client commentary describing David's strengths as "mastery of insurance, understanding the construction industry, exceptional writing skills and aggressive negotiation." David has developed a niche national practice representing commercial policyholders in insurance coverage disputes, including on many of the largest construction projects and claims across the United States.

For details, go to Modular Building Institute: 2024 World of Modular.

Jevon is an experienced trial lawyer who works with clients in a range of industries, with a focus on assisting policyholders in insurance coverage disputes and representing stakeholders in construction and real estate matters, as well as appeals. He appears frequently before Minnesota and federal appellate courts. In addition, Jevon was named an associate fellow of the Construction Lawyers Society of America and participates in its Trial Law Institute and Diversity Law Institute. He also serves on the Contracts Committee of the Associated General Contractors of Minnesota.

For details or to register, go to Minnesota CLE: Appellate Practice and Procedure: Oral Argument at Minnesota’s Court of Appeals and Supreme Court.

Erica represents clients in complex commercial disputes primarily in the areas of tort and product liability, business torts, insurance coverage, and breach of contract actions. She is also an experienced appellate attorney. Erica currently serves as reporter for three Minnesota Supreme Court Advisory Committees: the Rules of Civil Procedure, the Rules of Civil Appellate Procedure, and the General Rules of Practice; and she is the former chair of the Minnesota State Bar Association's Appellate Practice Section.