Comments on: “Whither the Lawsuits?” A Mid-2009 Assessment of the State of Green Building Litigation

By: Brian D. Anderson

Brian D. Anderson — Mon, 06 Jul 2009 16:30:43 +0000

One more point to add to your list–nearly every green building I’ve toured was built by a construction, engineering, architecture, HVAC, controls or other company to use as a demonstration facility for potential clients. A LEED Gold building I recently toured has a mechanical room set up for tours. I’ve never seen a better lit and spacious mechanical room in my life. These folks are never going to sue since they built it themselves (or built it in partnership with a green construction firm with whom they work in tandem on green projects) as a demonstration site and have zero interest in exposing any problems. Speaking more generally, I think LEED is pursued for the marketing value (where not required by law). Lawsuits are not good for marketing.

By: Stephen Del Percio

Stephen Del Percio — Thu, 11 Jun 2009 13:21:10 +0000

Thanks for the comments. Michael, great points about ADR, particularly given that the default dispute resolution provision in the AIA documents is mediation then arbitration, not litigation.

By: Michael Gibbons

Michael Gibbons — Wed, 10 Jun 2009 01:12:43 +0000

Good article. A few other reasons for the lack of reported claims include (i) contracts requiring private arbitration for dispute resolution will not show up on the litigation radar, and (ii) 99% of trial court claims also do not show up on litigation radar. In most instances, a case must wend its way through the trial court system (i.e., time and dollars) and only after an appeal is taken and decided (i.e., more time and dollars) is there a reported decision that actually registers on legal research radar screens. The latter point effectively adds years from the time of filing the lawsuit to the point in time when a reported decision is rendered.

By: Christopher Hill

Christopher Hill — Tue, 09 Jun 2009 14:19:14 +0000

Good thoughts Stephen. I look forward to hearing more. I think that the last point is the best, i. e. all “Green” litigation may not scream “green” and may very well just look a lot like “traditional” contract litigation.