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What is a Mediation?

October 1, 2020 No Comments

Mediation is an alternative to a jury trial that often leads to the settlement of lawsuits and legal disputes. Mediation can take place before or after a lawsuit it filed. It is now common for judges to order the parties in a lawsuit to mediate a case before it goes to trial. Judges know that many cases can be resolved in this way without the time, expense, and uncertainty of a jury trial. What Happens at a Mediation? Mediation is a less stressful and more collaborative process than a jury trial. Typically, a mediation will take place at the office of one of the attorneys or at the office of the mediator. You and your attorney will spend most of your time in a private conference room. The other party to the dispute and his or her lawyer will spend most of their time in a different conference room. Often the parties will meet together with the mediator at the beginning of the process to discuss the procedures and to give an overview of each party’s view of the case. This is not like a closing argument. Most skilled attorneys present an overview of their case and do not “come out swinging.” Why? Because the purpose of a mediation is to create an opportunity for focused discussion, negotiation and compromise. Compromise is difficult when tempers are high. Sometimes one of the attorneys will give an antagonistic presentation in the mistaken belief that this will somehow help his or her client. We know that the best response is to not react. The goal of mediation is to reach a mutually agreeable settlement. This is not a Facebook argument where one scores points by being witty and insulting. A substantial portion of the mediation involves private caucuses. In plain English, the mediator spends time individually with each side exploring the strengths and weaknesses of their case. The mediator encourages the parties to consider options for settlement. The mediator helps each side better understand the risks and the potential benefits of going to trial. In many, but not all cases, the mediator is able to help the parties reach an agreement to settle the case. In some cases that don’t settle at mediation, the parties will reach a settlement a week or two later. If settlement is still not possible, the parties move forward to trial. One of the benefits of mediation and one of the reasons it can be so effective is that it is largely voluntary. Each side has the right to say “No” to any proposal. Because each party knows that the other party can end the mediation, each party has an incentive to cooperate in the process. Why Would You Settle Instead of Go to Trial? If you have already hired our firm, you probably did so because we have the experience and the ability to succeed in the courtroom. If you hired us because we are good trial lawyers, you may be wondering why you would settle your case rather than go to trial. The first answer is a simple one. When you hire a lawyer who is skilled in the courtroom, you actually have a better chance of obtaining a fair settlement. The other side knows that you can hold their feet to the fire. If the other side offers a fair and appropriate settlement and you can avoid the time, uncertainty, and expense of trial, it often makes sense to settle. There are many other circumstances where settlement makes sense. In some cases, the key facts are in dispute and the outcome at trial is uncertain. You may want to avoid that uncertainty with a settlement. One of the parties may not have sufficient assets to pay a fair settlement and you may decide to settle for what is available. The law may be uncertain in your particular case. Or, there may be a time issue or other personal issue that affects your willingness or ability to wait for trial. Every client’s situation is different. There are many factors that affect whether it makes sense to settle or go to trial. We carefully advise our clients about the risks and rewards of trial and settlement. Ultimately, the choice belongs to you as the client, but we will provide you with legal and factual information, advice, and recommendations so your decision will be a well-reasoned one that works for you. You do not have to make the decision alone.

Who Gets Wrongful Death Damages?

April 22, 2019 No Comments

The death of a loved one is overwhelming. It can be even more so if that death was unexpected and due to the negligence, recklessness or intentional misconduct of another. You may be experiencing not only grief and confusion, but anger. In the midst of this, your legal rights need to be protected. You will likely face unplanned financial losses including medical expenses, burial expenses, lost wages and other expenses. You will also have to deal with the grief and sorrow that comes with the loss of a loved one. You could be entitled to recover damages from the wrongdoer for your losses and your loved one’s losses. The laws governing wrongful death can be complicated, so it is important that you speak to us as soon as possible. Wrongful death lawsuit If the death of your loved one was caused by the negligent, reckless or intentional conduct of another, you could be entitled to receive damages for your loss. The purpose of these damages is to provide relief for the emotional and financial hardship the family has suffered as a result of the victim’s death. State law dictates what damages you can sue for, and in what amounts. Who can sue for damages? Each state has different guidelines as to who has standing, or the right to sue for wrongful death damages. These laws vary from state to state. For a lawsuit filed in the state of Kansas for example, the laws indicate that any heir who has sustained a loss can bring a lawsuit. Heirs would include a surviving spouse, parents, children, and grandchildren for example. In Missouri, the laws are slightly different. Who may bring a wrongful death lawsuit is divided into 3 categories. The first category consists of the victim’s spouse, children, surviving descendants of any deceased children, or the mother or father of the deceased. If there is no one living the first category, then the court will allow claims by individuals in the second category. The second category consists of siblings of the victim and the sibling’s descendants. If there is no one living the first two categories, the court will appoint a plaintiff ad litem. A plaintiff ad litem is appointed by the court on the request of people who have a legal right to share in the proceeds of a wrongful death action. How are damages distributed? Once damages are awarded, state law will determine who receives the money. In Kansas, the estate of the victim may be compensated for the costs of bringing the lawsuit. Then the damages are distributed to the victim’s heirs by the court. The parties often agree to the distribution of a settlement amount, which must be approved by the court. When the parties cannot agree on the distribution of the settlement amount or the verdict amount, the court will make that determination. In Missouri, the court must approve of any settlement and will be responsible for apportioning the damages to the parties in proportion to the loss suffered by each party. Come talk to us Losing a loved one is a life changing experience. As hard as it is, it is important not to lose sight of the fact that you and your family have legal rights that need to be protected. It’s important to start that process as soon as possible. We are here to take that stress off you so that you can heal and move forward with your life. Contact us to discuss your options and learn what can be done to address the loss you have suffered. Call us today at 913-839-2808.

OSHA Compliance – Increases Excavation and Trenching Enforcement

February 22, 2019 No Comments

OSHA Compliance – Excavation and Trenching The Occupational Safety and Health Administration (OSHA) has announced that it is stepping up their safety enforcement and education with an excavation and trenching National Emphasis Plan. This OSHA compliance activity will last for a period of at least three months but could go on for an indefinite period of time. The Agency stated, “OSHA will concentrate the full effect of their enforcement and compliance assistance resources to help ensure employers are addressing these serious hazards.” This new plan became effective on October 1, 2018. The reason for this program is because there has been a marked increase in trenching fatalities. In 2016 alone, the number of these accidents was nearly two times the average for the past five years combined. OSHA reported that “because of the continuing incidence of trench/excavation collapses and accompanying loss of life, the agency has determined that these worksites continue to warrant an increased enforcement presence. OSHA has long maintained that employees exposed to potential cave-ins must be protected before the excavation face is in imminent danger of collapse, because OSHA believes that there is a potential for a collapse in virtually all excavations.” If you are uncertain as to whether your business in is compliance with these safety regulations, it is important to take advantage of their three-month grace period. During the grace period, OSHA regional and area offices will conduct outreach and assist with safety compliance. The outreach programs offered will include seminars for employers, labor groups and trade associations, as well as a free onsite consultation programs to help identify potential hazards. After this time, OSHA compliance officers will conduct inspections, and business owners and contractors could be subject to steep fines. It’s no secret that trenching and excavation are some of the most hazardous construction operations there are. Countless dangers are involved with these projects, which cause hundreds of injuries and fatalities every year. Cave-ins are the most dangerous, and result in the most fatalities. Other dangers can include incidents involving problems with equipment, falls, and hazardous conditions. It is important to ensure that your business is in compliance and your employees are safe. OSHA recommends the following: Employ Protective Systems Slope or bench trench walls Shore trench wall to prevent soil movement Shield trench walls to prevent cave-ins Prevent Collapses Any trench 5 ft. or deeper requires a protective system Any trench 20 ft or deeper requires a protective system created by a professional engineer Don’t Enter a Trench Unless Cave-in protections are present There is a safe entry and exit It has been properly inspected There are no materials near the ledge There are no atmospheric hazards or free-standing water This is a good time for construction businesses, contractors and any company with a building project planned to review their policies and ensure they are following trenching and excavation safety rules. This can take a great deal of time and energy, and includes pre-planning, and ensuring that employees are following proper safety procedures and daily inspections. If you have any questions or concerns about this new development, please contact us for guidance on this and any other construction law related issue.

Tips About Getting Paid In The Construction Business

November 15, 2018 No Comments

Cash flow is king in construction and getting paid is perhaps the most important variable whether a business strives or survives. Getting paid in the construction business has unique challenges. What is the best way to get paid? What do you do if payments are delayed? Or worse case, what do you do if you don’t get paid at all? There are logical reasons why it’s particularly difficult to manage a construction company’s the cash flow: Projects are cash intense and have long timelines going on for months and years. Retainage is commonly 10% and is withheld for extended periods of time; retainage is often equal to or more than the contractor’s margins for overhead and profit. Construction projects are complex, risks are high and compounded by uncertainties like weather, labor and material shortages and labor and material cost increases. Clients are often highly leveraged with extremely tight budgets that don’t account for contingencies during the construction of the project, often resulting in disputes over payment. Margins are thin, and quickly evaporate when things go wrong. Cash flows downhill…if the Owner is slow pay, the general contractor is slow pay, etc. Final payments can get bogged down and often unfair amounts are withheld to ensure the work is completed to everyone’s satisfaction. Here are a few tips to help ensure you are in as strong a position possible to get paid: Credit Worthiness Due Diligence Before doing any work on credit, get a credit application or credit agreement. Inquire with the Secretary of State’s website confirming that a customer is a legal entity as presented on the credit application. Check to see if their licenses are current. Ensure all business names match up as legal entities. If they don’t, it could be more difficult to enforce contracts, liens and bond rights. Setup A Guarantor of Account If your customer doesn’t have enough cash or assets to pay a debt, then you shouldn’t be signing up to do the project; however, if the business is cash poor, perhaps the owner’s of the company you’re contracting with has financial resources to pay the bills. Don’t expect to negotiate this after a contract is signed. Address financing of construction payments in advance. When possible, get personal guarantees of payment and run credit checks on the company. Bottom line…know where the money’s coming from to fund the project. Keep A Regular Audit Process Audit customers and suppliers even after a project has started. Be on the lookout for any changes to names of legal entities. A name change is a red flag that needs investigated as to why. Any change in credit standing signals the need to reconsider credit terms. Exercise Lien and Bond Rights If you encounter payment problems, don’t forfeit or waive your liens and bond claims. Know the timelines, deadlines and notice requirements. There are differences in public and private projects, and differences from state to state. Contact us before you start sending notices. We’ll provide important insights based on your specific project requirements. Include Project Name On All Documents Be sure to include the name of the project on invoices, purchase orders and even delivery tickets. This will make it much easier to substantiate lien or bond rights. It confirms what’s owed to your firm for that specific project and it helps with lien deadlines. Require all suppliers include the name of the project on invoices and delivery tickets. By taking simple steps such as these before, during and after a project, you will increase the odds that you will get paid for the services or equipment that you provided. Because, make no mistake, these steps can mean the difference between a business that’s profitable and thriving, or one that’s facing a highly uncertain future. Start With the End in Mind From day one, document, document, document. When a financial problem occurs due to non-payment, and the need arises to file a lien or bond claim, then is NOT the time to create the documentation. Put policies and procedures in place that keep all documents that will be required for a lien or bond claim current, and keep them current. When a claim is needed, at a minimum you’ll need to be able to prove, with documentation, the “who, what, when, where and how” of the work you performed.

How To Better Protect Your Firm Against Construction Defect Claims

November 12, 2018 No Comments

Two words that create instant anxiety for construction contractors are”construction defects.” That’s because there are a host of complexities that cascade from construction defect litigation. The costs to defend a claim can be significant. The time involved to defend yourself is considerable. And the implications for your reputation leave you at a huge risk. Indeed, your entire livelihood could be at stake. The construction business is already complex, and it continues to be even more so. New technologies have unknown consequences. New techniques in design and construction, along with new materials, and the relentless focus to be on time and on budget make your job all the more challenging. All the while, the legal risks mount. So, let’s look at a few areas where you can reduce your legal exposure to construction defect litigation. Take Control of Your Records First and foremost, maintain excellent records. Most construction suits occur years after project completion. Maintaining impeccable records are a must for a strong defense. Some of the more important documents to keep includes: – The contract and all change orders. – Requests for information. – Insurance policies, both yours and your subcontractors and suppliers. – The plans and specifications. – All changes to the plans and specifications. – As built drawings and specifications. – Copies of inspection reports. – Your notes and diaries maintained during the project. – Meeting minutes and notes. – Copies of schedules. Make Sure You’ve Got A Strong Insurance Policy A commercial general liability (CGL) requires the insurance company to provide your legal defense to any lawsuit against you for claims of negligence in performing your work. Construction insurance law is complex and beyond the scope of this article, but just know that even if the insurance company provides your legal defense, it doesn’t mean they are also going to cover your damages. Also keep in mind while the insurance company might pay for damages, you are still going to be liable to pay for the costs to remedy your work. Managing Your Risk With Subcontractors or Sub-subcontractors Never use uninsured subcontractors or sub-subcontractors. This situation puts you at tremendous risk and even increases the cost of the insurance. When dealing with your lower tier subcontractors, be sure to request you be named as an additional insured on a primary basis on their policy, and be sure to get a certificate of insurance that shows this has been done. Also, be sure there is continuing coverage after the project is complete, as more times than not the lawsuits don’t occur until well after the project is completed. Be sure your subcontractor’s insurance policy limits meet or exceed your contract requirements. Use indemnification and hold harmless agreements with your lower tier subcontractors, while at the same time making sure you don’t agree to unfair agreements with your client. Conclusion Construction defect litigation is complex. It can involve multiple defendants, more than one insurance company and diverse legal theories. The best way to avoid construction defect suits is to work with engineers, architects contractors and lower tier subcontractors who have stellar reputations. It never pays to cut costs, and the lowest price is not always the berst price. Do it right the first time by planning and executing in the right sequence. Keep your documents and records up-to-date. If you don’t have a lawyer, get one…you need one. Your livelihood depends on quick action after a claim is filed against you.

Does Your Construction Contract Protect You From Financial Losses?

November 2, 2018 No Comments

When it comes to the construction business, risks are high and profit margins are low, and there’s a very high risk you can lose money on a project. There are delays, cost overruns, and change orders, slow pay and the worse…not getting paid at all. That’s when a carefully crafted contract can make a difference. I’m not only referring to the boilerplate provisions like payment dates, invoice due dates and contract amount. You need an attorney who is well-versed in state law and who has a lot of experience in the many facets of construction. Sound legal advice like that adds significant value – and ensures you increase your chances of staying profitable on the project. Here are several areas where I believe you need to focus when negotiating up a construction contract. Change Orders Change orders can be easy, or hard. It depends on how they are set-up – and treated – during the project. But change order management starts with the contract. Be sure you understand and are ready and willing to abide by the change order terms in the contract. In most cases, major disagreements about change orders can be avoided upfront so long as the language in the contract is clear. There are many potential contract negotiation pitfalls, but here’s one simple one to address…make sure you don’t agree to unreasonable notification requirements subject to waiver if you fail to provide the notice. A clause that requires you to provide written notification for all changes in a very short, unfair time should be avoided. Be sure to examine change orders carefully. The one area I see day in and out is the failure to address time extensions on change orders. It is very common to agree to a price on a change order, while not addressing the additional time required due to the change. Remember, as you negotiate change order clauses in contracts, and as you administer change orders during the project construction, be sure to think about and address costs, time and profit. The Digital Age is Changing The Game With mobile platforms and electronic communications pervading every area of business, there’s been a big change in the way approvals and other client interactions are handled. Have you heard of the Uniform Electronic Transactions Act (UETA)? It involves electronic signatures and how other changes are approved. For instance, under UETA, which has been adopted in some form in most states, an email from a client requesting and authorizing a change order can be considered an electronically signed agreement. The UETA provides detailed and wide latitude to permit a change order to be set forth in digital signature formats. Even if a contract stipulates that all change orders must be in writing, if a client deviates from that and issues verbal change orders, the “in writing” requirements will often be waived by a jury or judge. Contingent / Conditional Payment Clauses These are the meat and bones of many construction contracts. The “Pay When Paid / Pay If Paid” clauses allow a general contractor to withhold payments from subcontractors until he receives payment from the client. If you’re a sub, your situation can be made quite difficult if you’ve signed such a contract. A general contractor can invoke this clause and can hold payment or even refuse to pay because the client hasn’t paid him. It is a very rare contract that does not contain a pay if paid clause; be sure to consider the consequences, and give great consideration to whom you are agreeing to work for, their reputation in the business for fairness, etc. Retainage Retainage is a way of life. Do what you can to minimize or eliminate it if possible. Try to get an early release of retainage clause. The maximum amount of retainage allowed varies from state to state, and from contract to contract. But, it’s also negotiable. Some early-in contractors like excavators are sometimes delayed payment up to a year, or until the entire project is 100 percent complete. This can put significant financial pressure on these contractors, and also undue pressure to file mechanic’s liens to protect their interests. Times are changing, and Federal agencies and even private firms are reducing the retainage amounts while paying early-in contractors sooner than later. It is in your best interest to consult with legal counsel early in the contract to get the best terms possible. It’s always preferable to say “my lawyer” asked for this or that, keeping you from being the “hard nose” in the negotiations. Please contact us about your contract prior to signing it. The financial risks could make or break your business.