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DIRECTORY AND CAPABILITIES

Substantiating Termination for Convenience Costs

November 09, 2025 — David Adelstein - Florida Construction Legal Updates
A termination for convenience clause is an important provision in construction contracts, particularly for the owner. An owner needs the contractual right to terminate a contractor for convenience. This means the owner does NOT need a reason to exercise a termination. This is night-and-day different from a termination for cause (or default) wherein an owner must have a material basis to exercise that right. Sometimes, the relationship is not where it should be, or not what was expected, or performance does not rise up to the level you require but does not rise up to a material breach. The termination for convenience clause gives the owner the discretion to just end the relationship. As a contractor, you need to understand the types of damages (costs) you are entitled if an owner exercises the termination for convenience. Don’t overlook this, because if an owner exercises the termination for convenience, you want to make sure you feel like you are protected. This could include a termination for convenience fee. There are a number of ways this can be accomplished, but you need to be sure you are entitled to costs incurred through the date of termination with reasonable overhead and profit, demobilization costs, early return fees, and costs incurred due to the termination. Regardless, keep in mind that it is your burden, as the contractor, to prove these costs with a reasonable degree of certainty. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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NY Appellate Court Clarifies Hearsay Standards for Admission of Accident-Related Entries in Medical Records

September 03, 2025 — Shawn Schatzle - Lewis Brisbois Newsroom
New York, N.Y. (August 5, 2025) - A recent New York appellate opinion focused on an all-too-common occurrence in the defense of injury actions: an entry in a hospital or medical record containing a statement from the plaintiff concerning the accident that contradicts the version the plaintiff has presented in litigation. Although encountering such an entry often feels like locating the proverbial silver bullet, it is largely worthless if it is not admissible. The problem is that such entries tend to constitute hearsay. Attorneys typically invoke the business records exception to the hearsay rule to admit such an entry into evidence, although the entry may also qualify as a party admission in appropriate circumstances (see Fraser v 147 Rockaway Pkw, LLC, 203 AD3d 894, 896 [2d Dept 2022]). New York’s Court of Appeals has long held that an entry that contains “a narration of the accident” is only admissible under the business records exception if it is “germane to diagnosis or treatment” (Williams v Alexander, 309 NY 283, 287 [1955]). However, judges and attorneys alike have long struggled with applying this standard in the context of particular cases. Fortunately, the Appellate Division, Second Department recently issued a helpful opinion on this topic. In Pillco v 160 Dikeman St., LLC (__ AD3d __, 2025 NY Slip Op 04495 [2d Dept July 30, 2025]), Justice Francesca E. Connolly clarified the standards courts should apply when considering whether to admit an accident-related entry in a hospital or medical record into evidence. Following the guidance offered in her opinion should make it easier for practitioners to admit such entries into evidence. Read the full story...
Reprinted courtesy of Shawn Schatzle, Lewis Brisbois
Mr. Schatzle may be contacted at Shawn.Schatzle@lewisbrisbois.com

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Traub Lieberman Partner Jessica Kull Obtains Favorable Arbitration Award In Year-Long High-Stakes Construction Defect Case

November 09, 2025 — Jessica N. Kull - Traub Lieberman
Traub Lieberman Partner Jessica Kull and the Traub Lieberman litigation team obtained an extremely favorable outcome in a highly contentious construction defect arbitration hearing on behalf of their client, a well-known general contractor, LG Construction Group LLC (“LG”). The litigation lasted a total of 6 years, with the arbitration evidentiary hearing portion continuing for 12 months. In 2019, the Claimant, a wealthy homeowner, filed an arbitration demand against both LG and the luxury brand architecture firm that she hired to construct a multi-million-dollar lakefront home in Wilmette, Illinois. The Claimant alleged construction defects totaling approximately $13 million in damages. Her claims included alleged defects to the exterior and interior of the home. In turn, Jessica filed third-party claims against approximately 20 subcontractors involved in performing the work. Read the full story...
Reprinted courtesy of Jessica N. Kull, Traub Lieberman
Ms. Kull may be contacted at jkull@tlsslaw.com

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Dallas County District Court Grants Kahana Feld’s Motion to Dismiss for Want of Prosecution

December 30, 2025 — Kahana Feld
Kahana Feld successfully obtained dismissal of a lawsuit in the 95th Judicial District Court of Dallas County. The Court granted our Motion to Dismiss for Want of Prosecution, agreeing that the plaintiff failed to diligently pursue their claims after more than 18 months of inactivity, despite an upcoming trial date. Our team demonstrated that the plaintiff had not initiated discovery or scheduled depositions, and furthermore, the delay was not excused by former counsel’s withdrawal. Consequently, the judge declined the plaintiff’s request for additional time and dismissed the case without prejudice. Read the full story...
Reprinted courtesy of Kahana Feld

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California Supreme Court Approves of Annual Civility Oath for Attorneys, Rejects Incivility As Basis for Disciplinary Measures

December 08, 2025 — Saul Lopez - Lewis Brisbois Newsroom
San Diego, Calif. (October 20, 2025) - Courts and lawmakers in California and across the country are continuing to grapple with the ongoing problem of incivility among lawyers. Nearly every week a new story is publicized in which an attorney is sanctioned or rebuked for sharp rhetoric in filings or combative behavior in the courtroom. The erosion of courtesy threatens not only collegiality but also the fair administration of justice. On July 20, 2023, the State Bar of California Board of Trustees made an effort to restore respect and decorum within the practice of law within the Golden State. It approved and sent proposed measures to improve the civility of attorneys in California to the California Supreme Court for review and approval. The proposed measures included: (1) changes to California Rule of Court 9.7 that would require attorneys to reaffirm their oath of civility annually; and, (2) amendments to the Rules of Professional Conduct that would add acts of incivility as a basis for disciplinary measures against attorneys. Read the full story...
Reprinted courtesy of Saul Lopez, Lewis Brisbois
Mr. Lopez may be contacted at Saul.Lopez@lewisbrisbois.com

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GRSM New York Founding Partner Mercedes Colwin Honored with 2025 Excellence in Diversity Award by PLUS Foundation

November 09, 2025 — Gordon Rees Scully Mansukhani
The Excellence in Diversity Award is presented annually to a member of the insurance industry who has demonstrated exceptional leadership and commitment to advancing diversity, equity, and inclusion within the profession. Honorees are recognized for creating meaningful change through mentoring, advocacy, thought leadership, and the development of inclusive policies and initiatives that broaden opportunities for underrepresented groups. Colwin was selected for her longstanding dedication to fostering inclusive workplace cultures, her active mentorship of diverse attorneys and professionals, and her visible role as a thought leader on the national stage. In addition to her leadership within GRSM, she has made a significant impact on the broader insurance and professional liability industries by raising awareness of equity issues, supporting educational initiatives, and championing the next generation of diverse talent. Read the full story...
Reprinted courtesy of Gordon Rees Scully Mansukhani, LLP

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Circuit Court Supports Attorney-Client Privilege and Work Product Protections in Connection with Internal Investigations

November 21, 2025 — Jason Spitalnick, Taryn J. Gallup & Kourtney George - Snell & Wilmer
On October 3, 2025, the U.S. Court of Appeals for the Sixth Circuit reaffirmed that the attorney-client privilege and work-product protections cover documents and communications concerning corporate internal investigations - even when companies later use those documents or related findings to make business decisions.1 In doing so, the court vacated a district court order that would have required FirstEnergy Corporation to produce, in civil litigation, privileged and work-product-protected documents related to two internal investigations. FirstEnergy, a public utility company headquartered in Ohio, became embroiled in a high-profile public-corruption scheme involving substantial alleged payments to state officials in exchange for favorable legislative efforts. In response, FirstEnergy and an independent committee of its board retained separate outside counsel to conduct internal investigations. FirstEnergy then faced civil litigation related to the same underlying facts. Reprinted courtesy of Jason Spitalnick, Snell & Wilmer, Taryn J. Gallup, Snell & Wilmer and Kourtney George, Snell & Wilmer Mr. Spitalnick may be contacted at jspitalnick@swlaw.com Ms. Gallup may be contacted at tgallup@swlaw.com Ms. George may be contacted at kegeorge@swlaw.com Read the full story...

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When Logic Doesn’t Matter: Why ‘Irrational’ Isn’t a Ground to Overturn an Arbitration Award in Tennessee

November 09, 2025 — Matthew DeVries - Best Practices Construction Law
Arbitration has long been viewed as a faster, more efficient alternative to litigation. But anyone involved in construction disputes today knows that is not always the case. The process can be just as costly, sometimes taking as long as a court case. Yet one thing remains consistent, and it is the most important point for everyone in the construction process to understand before signing an arbitration clause: once an arbitrator decides, that decision is almost always final. That reality was reinforced in a recent Tennessee Court of Appeals decision, MidSouth Construction, LLC v. Burstiner (June 12, 2025) (pdf). The case involved a homeowner who tried to overturn an arbitration award following a dispute about defective deck construction. The homeowner argued that the arbitrator’s decision was “fundamentally irrational.” The court rejected that argument. Read the full story...
Reprinted courtesy of Matthew DeVries, Buchalter
Mr. DeVries may be contacted at mdevries@buchalter.com

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