Q: What type of general advice would you consider from a contracting point of view when our firm is considering implementing BIM in conjunction with a structural steel-framed building?

A: Technical questions of this nature are often left up to the design professionals who are familiar with building information modeling (BIM) technology. There are certain things that a practitioner in the field should think about when drafting contracts and should be aware of, including language for purposes of implementing the party’s goal. Of course, this is just general advice and not specific legal advice as to any project. Nonetheless, the project team should discuss and consider some of the following ideas.

When an owner mandates BIM, a protocol, in writing, should be stipulated or agreed to among all team members to follow. This will serve to avoid confusion and mistakes that result from miscommunication. It is also suggested, especially for specialty contractors including steel fabricators, that they be prequalified with respect to their ability to meet the requirements of the BIM protocol established in the contract. Since lawyers often see only problems that are a result of a process, it is never too late to engage a knowledgeable person in the contract process as soon as possible. Additionally, some thought should be given to a contractual requirement that specialty contractors be engaged early in the design life of the project. Obviously, it is important for the steel fabricator to be involved early in the project for material ordering, which is critical to avoid any potential delay. It should also be a requirement that the necessary parties attend planning meetings to facilitate discussion of potential interferences so that problems can be solved early to avoid field issues, which is a very expensive time to resolve issues. There are also many industry forums where the petitioner can consult to get additional information. One such example is the American Institute of Steel Construction’s Steel Solution Center at solutions@aisc.org.

Q: From time to time, employees in our firm get subpoenaed to testify regarding issues on projects that end up in litigation. Do you have any general tips as to how one should go about preparing for deposition?

A: Giving testimony, whether in deposition, arbitration, legal proceeding, or in a court of law requires the witness to tell the truth. This is the single most important attribute of any witness, the ability to tell the truth. If a witness cannot be trusted, they are not going to be believed.

While the question presented is quite broad, there are some general things about testifying that everyone could benefit from knowing. Becoming a better witness lends assistance to the person listening to the testimony and evaluating the same for use in the decision. Generally speaking, witnesses need to be sincere, straight-forward, and accurate. Courtesy and politeness go a long way toward making the process as pain-free as possible. Witnesses are always concerned with how they appear. The best appearance is one that is neat and clean and dressed appropriate for the role in the case. The CEO of the company who generally wears a suit should wear a suit for his or her deposition; however, you would not expect a steel foreman in the field to show up for a deposition dressed similarly. Appearances count, so it is best to dress conservatively and simply, but not let it distract from your testimony.

There is one thing that every lawyer wishes that their own witness does consistently and accurately, and that is to stop, listen, and think before answering a question. It is imperative that the witness listen to the question all the way through. It is also important to take your time. It is not a test or race. It is always a good idea to pause before speaking, and the witness should never guess. It is alright if the witness does not know something about the topic being asked about or cannot remember. Lastly, you need to honor yourself and the truth. Do what keeps you relaxed and in a good frame of mind. Testifying is a stressful experience, so prepare mentally and physically for the task.

Michael J. Baker, Esq., is a partner in the Cerritos, Calif.-based law firm of Atkinson, Andelson, Loya, Ruud & Romo. He is an expert in design and construction contracts, mediation, and litigation. Please send him your legal questions via e-mail at mbaker@gostructural.com.