This article is designed to help you understand how to enjoy the time you spend dealing with an attorney versus allowing the experience to turn into the horror story so many people expect it would be. Okay, “enjoy” may be overstating it a bit.  After all, when dealing with an attorney you are typically dealing with situations of high importance which can be very expensive and stressful. Hourly rates can range from a few hundred dollars an hour to many times that depending upon the skill and expertise of the attorney.  Even though this article may not turn your dealings with an attorney into a pleasant experience, it does include a number of important tips that are intended to assure as little unpleasantry as possible.

When to involve legal counsel

Just like the best time to see a dentist is before you have a mouth full of cavities, the best time to see your attorney is before you have giant mess on your hands.  From a construction law standpoint, the very best use of attorney dollars is paying an attorney to prepare, or at the very least, review contract documents before they are signed.  By doing so, you should have a reasonable expectation of entering a contract that clearly manages risk.  In other words, prior to signing an agreement, your attorney should be able to help you understand the responsibilities and risks inherent in the proposed agreement, and what you can do to avoid or manage those risks.

The rule of earlier is better also applies to using an attorney to help deal with conflict.  Speaking to an attorney at the first sign of conflict has two obvious benefits.  First, the attorney can identify and as necessary, assist the client in satisfying contractual or statutory conditions precedent.  Many claims end before they even begin because the claimant failed to comply with contractual or statutory requirements.  These requirements can take different forms, for example deadlines or content that must be included within a specific document.  The second benefit of speaking to an attorney as soon as a potential dispute is identified is the attorney’s ability to then advise the client on a big picture strategy designed to assist in setting up a claim or defense as advantageously as possible.  An attorney may be able to suggest strategies for communication aimed at preventing a dispute from maturing, or when that is not possible, help frame the dispute in your favor. Advantageously structuring a client’s position relative to a dispute before the dispute has matured into formal claims and defenses is often enough to prevent the dispute from ever reaching maturity.

How to select the right attorney

First and foremost, it is imperative to assure that any attorney you are considering has the expertise and experience required to handle the dispute you are facing.  I am constantly surprised by how often parties engage counsel on construction law disputes that have little or no construction law experience.  Again, using the dentist analogy, common sense dictates that you would not go to an orthodontist for a tooth cleaning any more than you would go to a general dentist for braces.  The exact same logic should apply when choosing an attorney.

Many, if not most attorneys provide prospective clients with an initial consultation that is either free of cost or charged to the client only to the extent the attorney is engaged.  However, prospective clients frequently fail to take advantage of this significant opportunity to save money.  From the attorney’s perspective, the reason for an initial consultation is to assure that the attorney understands the assignment and is comfortable handling it before committing to do so.  Accordingly, attorneys will typically request basic background information in advance of an initial consultation to review prior to the consultation. Thus, prospective clients that use the initial consultation as little more than an opportunity to meet an attorney are missing out on a tremendous opportunity to understand their dispute from the attorney’s point of view.  An informed client should use the initial consultation to ask as many questions as they can about not only the attorney’s experience or billing practices, but also the attorney’s evaluation of the case, anticipated budget, expected duration, and strategy.

If you can appreciate the significant value of the information a prospective client can obtain during an initial consultation, then the logic of the next suggestion should be self-evident. Prospective clients should take advantage of free initial consultations by meeting with as many prospective attorneys as is necessary to find the right attorney for your assignment.  Just as a person diagnosed with a serious illness should obtain a second or third opinion prior to deciding upon a course of treatment or the doctor to provide such treatment. A person dealing with an important legal matter should meet with multiple attorneys prior to agreeing upon a strategy and find the right attorney to implement that strategy.  The most basic legal dispute will involve a significant amount of stress, anxiety, and more than likely, expense. Understanding that, it is foolish not to take advantage of every opportunity to assure you wind up engaging an attorney that cared enough to prepare in advance of your meeting and that has the knowledge, expertise, and experience to clearly describe how the attorney plans to handle the proposed assignment.

How to efficiently use legal counsel

A discussion as to the client’s budget for the assignment should begin as part of the initial consultation and should continue throughout the representation.  Attorneys that are not being paid for their work are generally allowed to not only terminate representation, but assert retaining and charging liens to secure payment for services provided.  Accordingly, every client should discuss a proposed budget with their attorney on the front end of a dispute and periodically throughout the matter as the case develops and things change. Any client with a limited or defined sum of money that is willing or able to apply towards legal representation, should openly share such information with their attorney as early in the process as possible so that the attorney can consider their ability to deliver the requested legal services within the specified budget.

After an attorney has been engaged, the most effective way to efficiently deal with the attorney is to have an organized strategy for communication in place from day one.  Attorneys that bill by the hour are selling a limited resource, the billable hours that can be eked out of a workday. A successful attorney needs to bill all time  they spend working on a client’s matter.  However, perhaps the most often uttered complaint about attorneys with hourly engagements is that they bill for every single phone call or email.

Clients that make this complaint have only themselves to blame because the complaint arises from the client’s failure to understand the implication of billing practices that employ minimum billing increments and the client’s failure to employ an organized strategy to deal with same.  When an attorney has a minimum billing increment of .2 hours, the client is going to be billed for 12 minutes of legal fees whether the attorney spends 12 minutes on the task or not.  Understanding this, you can see how quickly legal fees can mount by sending an attorney a series of “quick emails” or calling an attorney with several “simple questions.”

How do you address this issue?  Understanding the implication of minimum billing increments is the first step and planning accordingly is the solution.  Instead of sending an email to your attorney every time you have a question, maintain a notebook where you write down questions to address with your attorney during your next conference.  Obviously, emergencies can arise and when they do, you would be foolish not to reach out to your attorney immediately. However, if during the conference necessitated by an emergency you are able to address five non-emergent questions, thoughts, or concerns that you had jotted down to discuss the next time you met with your attorney, you will have saved an entire billable hour versus having sent those five simple issues in separate emails, each of which would have triggered a .20 minimum time entry.

How to efficiently use the legal system

Ask almost anyone that has been a party to a lawsuit that went to trial, and they will proclaim that a bad settlement is very often better than a great lawsuit.  Attorneys are expensive.  Litigation is time consuming and stressful.  What do you do with that information?  If you are smart, you will use it as a motivating factor to encourage you to find the earliest possible opportunity to end the case on terms that you can live with.  Litigation should be viewed as a matter of last resort, and as such, during litigation parties should anxiously explore any opportunity to bring the dispute to an end.

Decision making by a client during litigation should be driven by what the party “needs” out of the litigation versus what the party believes it is entitled to, wants to receive, or believes justice would dictate, and to do otherwise almost assures disappointment in the final result.  If despite my warnings, a client insists on speaking to me about “what is fair” or “what justice dictates,” I remind the client that while we have the best justice system in the world, it is far from perfect, and suggest the client spend their hard-earned dollars on a psychologist working through their sense of fairness or justice rather than spending those dollars on an attorney seeking an end that matches the means.

John J. Thresher, a Florida Bar Board Certified Construction Specialist, is one of the construction industry attorneys at Zinzow Law, LLC.  For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

You are showing a colleague the photographs from your vacation to Big Sky Country, still relishing in the sounds of silence and the intoxicating scent of ponderosa pine you left just yesterday, and in walks an OSHA representative welcoming you back with a Citation and Notification of Penalty.

The story, however, does not start or end there.  By this point your facility or your jobsite, or both, have been inspected on at least one occasion by OSHA.  This could have been a routine inspection, or one triggered by an accident.  It is wise to learn about your obligations under OSHA before an inspection and before receiving a Citation and Notification of Penalty because the price you pay thereafter may be significant.  That price can be the penalty itself, the legal costs to contest a Notification of Penalty, increased worker’s compensation costs, and even losing future bid opportunities because of required OSHA incident disclosure.

The OSHA of today is a far cry from its origins.  OSHA was passed by Congress in 1970 and became law in 1971 after an increase in accidents and deaths spanning five decades, starting with World War II.   Manufacturing during the war was focused on defeating Hitler and keeping wages at pace with extraordinary inflation, sometimes sacrificing health and safety for the good of the cause.  After World War II the country saw dramatic growth during its chemical revolution where new chemicals were created and deployed in manufacturing and agriculture without a full understanding of their impacts.  The environmental movement of the 1960s, seeking to rally others behind their cause, enlisted the workforce and unions to tip the scale against employers, and tip, it did.  During a two year legislative debate on workplace safety, pro-business legislators sought to create an advisory OSHA agency, not one which had the power to regulate.  Those legislators also battled against inclusion of what we now know as the “general duty” clause.  Some battles were won, and others were lost.  What remained was a patchwork of ideals that a new executive agency would implement.  In the decades since this agency has seemingly expanded its-own power, and seeks to enforce an ever expanding body of its unilateral pronouncements.  This body of pronouncements emanate from the very “general duty” clause pro-business advocates fought back against.  While that clause is now the law, executive agency edict can fortunately be checked through knowledge and challenge where appropriate.

Contractors should know that they have a general duty to provide a workplace free from recognized hazards likely to cause death or serious physical harm.  That workplace includes not only a contractor’s own facilities, but the jobsite as well.  The contractor must also endeavor to ensure that its employees perform daily activities in accordance with applicable safety standards, of which there are many.  There are general standards, and also those which depend upon the nature of work performed (e.g. illumination, lead, hazmat, electrical, fire protection, welding, confined space, fall protection, chemical).  These elaborate standards are set forth initially in the United States Code and the Code of Federal Regulations.[1]  OSHA then issues interpretation letters explaining those requirements and how they may apply to a particular circumstance.[2]

It is critical that contractors are intimately familiar with applicable standards, and that contractors develop an ongoing safety training program.  This program should be conducted both by internal and external sources.  The program can and should consist, in part, of informal training, such as project planning meetings and task specific training by supervisors on a day to day basis.  The program should also consist of formal training via internal seminars or outsourced seminars.  All training should be documented contemporaneously (who, what, when) because there is little time to scramble for details and documentation after an accident.

Although contractors have a duty to implement safety training, they are not legal guarantors of safety.  The mere existence of an accident does not mean that a contractor has failed in its general duty.[3]  Since the contractor is required to address only recognized hazards, an unanticipated unusual event does not trigger a violation of the general duty.[4]  This is particularly true where OSHA claims that the incident is “serious,” as opposed to “other than serious.”   A serious violation exists only where OSHA can prove there is a substantial probability of death or serious physical harm and that the contractor knew about it, or that it should have known about it with the exercise of reasonable diligence.[5]  Even where an event could have been anticipated, OSHA must still prove that feasible measures would have materially reduced the likelihood of injury.[6]

Against this backdrop we recircle to our story of the returning vacationer.  Following the accident or other inspection the OHSA Compliance Safety and Health Officer would have submitted an inspection report to the Area Director for review.  While this secondary review is designed to safeguard contractors from overzealous prosecution by the Officer, the reality is that the Officer carries a great deal of influence with the Area Director.  If the Area Director concludes that the employer has violated a rule, a Citation will be issued, and it may be combined with a Notification of Penalty.[7]  OSHA is required to give the contractor a reasonable time within which to cure (abate) the violation, though that will not eliminate the penalty if one is assessed.[8]  The abatement period specified by OSHA is often unreasonable, but contractors may petition for modification of the abatement date.  The petition must include a number of details, such as steps taken to abate the issue by that point, the additional time needed, interim steps implemented to safeguard employees during the abatement period, and a certification that the petition for modification has been posted in a manner visible to the contractor’s employees.[9]  This petition must be timely filed or the contractor will have waived its right to seek modification.

The Contractor may also wish to contest the Citation in whole or in part.  This may be necessary for any of the reasons outlined in the opening paragraphs of this article.  It may also be prudent because an uncontested Citation may lead to more frequent OSHA inspections and increased fines in the event of future violations.  A Citation may be contested in only two ways: (1) an informal conference and (2) a formal notice of contest.[10]  A formal notice of contest must be initiated with the Assistant Regional Director within fifteen business days of the Citation.  The informal conference does not have any impact on that deadline, so if an informal resolution is to be reached, the contractor must initiate the informal conference quickly.  The contractor has the right to and should be represented by counsel during both an informal conference and the formal contest proceeding.

The contest proceeding is a formal legal process before the OSHA Review Commission, with a presiding Administrative Law Judge.  OSHA will be represented by legal counsel throughout the proceeding.  These proceedings are governed by complex rules of procedure and standards.[11]  At conclusion of that proceeding, the Administrative Law Judge will prepare a written decision which may be appealed to the appropriate federal circuit court.[12]

In 1776 Adam Smith published his great work The Wealth of Nations wherein he espoused the principal of the “Invisible Hand”; a laissez-faire, hands-off policy where government would let the competitive market self-regulate.  Some might say that what Adam Smith was to the Invisible Hand, OSHA is to the heavy hand.  While OSHA is often well-intended, it provides a terrible trap for the unwary.    You may avoid this trap by learning now about your obligations and defenses under OSHA, because with swift and appropriate action, contractors can position themselves to avoid, defeat, or modify Citations and penalties. Don’t be the contractor who exclaims OSHA-Oh Sh…oot!

Justin R. Zinzow, a Florida Bar Board Certified Construction Specialist, is one of the construction industry attorneys at Zinzow Law, LLC.  For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

[1] 29 CFR 1926.

[2] https://www.osha.gov/laws-regs/standardinterpretations/2006-10-18

[3] Secretary of Labor, Complainant v. Intercontinental Terminals Company and Erbauer Construction Corporation, 1980 WL 10125, at *8 (Mar. 20, 1980) (stating it is well settled that the happening of an accident, in and of itself, is not proof of a violation of the general duty clause, further opinion testimony, even that of an expert, is not conclusive and it is up to the trier of fact to determine what weight, if any, will be given to the testimony).

[4] Champlin Petroleum Co. v. Occupational Safety and Health Review Commission, 593 F.2d 637 (5th Cir. 1979) (stating that the general duty obligation is not designed to impose absolute liability or respondeat superior liability for employees’ negligence, rather its requires the employer to eliminate feasibly preventable hazards. It is the Secretary’s burden to show that demonstrably feasible measures would materially reduce the likelihood that such injury would have occurred).

[5] Secretary of Labor, Complainant v. H.C. Smith Construction Company, 1980 WL 10503, at *10 (Nov. 13, 1980) (finding that the occurrence of a death is not enough to result in a serious violation, the evidence must show that if a violation occurs, there is a substantial probability that death or serious physical harm could result therefrom).

Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978) (stating that failure to comply with a safety standard under OSHA is willful if done knowingly and purposely by an employer who either intentionally disregards the standard or is indifferent to its requirement); Brennan v. Occupational Safety and Health Review Com’n, 501 F.2d 1196, 1199 (7th Cir. 1974) (finding a serious violation to exist where there is a probability that death or serious physical harm could result from an existing condition or practice adopted unless employer could not with reasonable diligence know of the violation).

[6] Id.

[7] 29 CFR 1903.14

[8] Id.

[9] 29 CFR 1903.14-1903.15

[10] 29 CFR 1903.17 & 1903.20

[11] Part 200, Title 29 CFR.

[12] 29 USCA 660.

Today’s world is looking slightly different than it used to.  Nowadays, it is “normal” to see people wearing masks, face coverings, and gloves while doing their grocery shopping, and in some places, it is a requirement.  It is “normal” for an outbreak of hysteria to form over the last package of toilet paper or cleaning wipes.  It is “normal” to whip up your own homemade bottle of hand sanitizer because you cannot find it anywhere else.  People are referring to these life changes brought on by coronavirus as the “new normal”.  In fact, people are already questioning if things will ever return to how they once were.  While life should eventually return to how it was before the coronavirus was introduced, another underestimated change as a result of this global pandemic are how force majeure clauses within contracts may be drafted and interpreted.

What is a force majeure clause?

The term force majeure comes from the French meaning “superior force”.  Essentially, a force majeure clause within a contract identifies unforeseen, supervening events or situations that may excuse a parties’ delay in performance.  For example, a party to a contract may be obligated to complete a construction project by an agreed upon deadline.  However, if a hurricane were to suddenly hit and destroy part of the newly built structure, causing significant delays in completion, the constructor may not be found in breach of the contract if the contract identifies this type of natural disaster as a force majeure.  In addition to hurricanes, other more specified events, typically listed within a force majeure clause can include: war, riots, fire, national emergency, labor strike, governmental acts, acts of God, and pandemics.  A force majeure clause within a contract may appear similar to the one below:

“Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, labor disputes, delays in transportation, supply shortages, war, fire, invasion, lockout, equipment failure, severe weather conditions, or acts of terrorism.”

Would the effects related to COVID-19 be covered by a force majeure clause?

The answer to this question may not be that simple.  In fact, since the onset of coronavirus, many people have looked to their contract to try and determine if the issues they are experiencing would be appropriately protected by their force majeure provision.  Even after conducting a methodical review of the language utilized in the contract, this is not always clear.  The delays or issues in performance stemming from coronavirus might be excusable if the terms “governmental act”, “epidemic”, or “pandemic” are notably defined as examples of  force majeure.  If not, and a dispute were to arise, it may need to be resolved through the use of arbitration or litigation.  Litigation is always the last option anyone wants to consider when it comes to resolving a disagreement, but if it MUST be done, it is of the utmost importance to find an experienced attorney, especially within the parties’ particular industry.  As the outcome of force majeure disputes are decided on a case-by-case basis and dependent on numerous factors, such as the terms of the contract, applicable law, and other facts, it is crucial to rely on someone who has previously handled contract disputes.

Things to consider before signing a contract:

Is the force majeure clause within the contract sufficient to cover issues that may be caused by the effects from COVID-19?

Prior to signing any legally binding document, serious consideration should be made as to what may go wrong after the document is executed.  While it can be extremely difficult to prepare for the unexpected, there are typically basic scenarios to keep in mind in order to be better protected.  Think of the force majeure clause like insurance.  What events could happen that may negatively impact the ability to abide by the terms of the contract?  These should be included within the force majeure clause to potentially avoid liability for not being able to meet the requirements assigned in the rest of the contract because of that particular event.

More specifically, determine if the ongoing effects from coronavirus may contribute to failures in performance, delays, or any additional defaults.  If labor or material shortages are caused by the effects of coronavirus (i.e. people getting sick, mandatory quarantining, or imposed travel restrictions) and the contract specifically lists “labor or material shortages” in the force majeure provision, those particulars should be covered.  If the force majeure portion of the contract does not include particular language related to the effects from coronavirus, it may be up for further interpretation.

If a dispute were to arise and the contract requires arbitration, mediation or possibly litigation, how will these be conducted?

As social distancing and other restrictive mandates have been issued, changes had to be made from the standard day to day business operations seen before, especially with how legal proceedings are conducted.  In the past, parties were able to negotiate and argue their point of view in person and within relative proximity to one another.  Nowadays, mediations, arbitrations, and hearings are held via video conference or telephonically.  It may not seem like a substantial issue, but what challenges could occur within the use of these formats, as opposed to performing the traditional, in-person confrontations?  As contracts typically contain a clause related to navigating potential disputes, be sure to take into consideration how the contract may need to be revised in order to prepare for a socially distant friendly format.

Future impact of coronavirus:

There are several economic impacts and concerns related to coronavirus, which will likely continue long after the virus is gone.  It is impossible to know exactly how much will be impacted as it is still fairly new, but it is something that should also be taken into consideration before signing a contract or making any business-related decisions.  In the event of a contract dispute arising from effects caused by coronavirus, pay close attention to any news related to court decisions and how they may be interpreting this ultimate force majeure.

Tiffani Sprague, a Paralegal to construction industry attorneys at Zinzow Law, LLC.  For more information, or to inquire about a free seminar on this or other legal topics, email info@zinzowlaw.com, or visit www.zinzowlaw.com.

At Zinzow Law we believe it is our patriotic duty to make our voices heard at the ballot box, but also to support exceptional candidates who vie for public office with the promise of honoring the traditions of America, making her strong, and continuing her beliefs.

Our dear client Rick Haskins, a successful businessman in construction, real estate, pools, plumbing and a Veteran of the U.S. Navy, has decided to seek the office of Mayor of Key West, and we are proud to support him personally and as his campaign’s legal counsel.  God Bless America!

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