Mr Bastianelli is a partner at Peckar & Abramson. He served as chair of the ABA forum on construction law and received its Cornerstone Award. He is a fellow of the American College of Construction Lawyers. He was named the 2015 and 2016 construction lawyer of the year by Who’s Who Legal. He is a past editor of the Journal of the ACCL, The Construction Lawyer, and books on construction ADR and government contracts.
What do you enjoy most about practising in construction law?
The people are the best part of the practice. The clients are typically entrepreneurs and risk takers; they are smart, energised and caring leaders. In addition, the construction bar is truly congenial and collaborative and has produced some of my best and closest friendships.
How has your experience in litigation enhanced your alternative dispute resolution practice?
My years of litigation experience have given me the ability to empathise with counsel and understand what counsel is doing and why. They also have given me the tools to see through the smoke to find and decide the critical issues.
What are the greatest challenges that the internationalisation of construction projects has presented to lawyers practising in the industry?
One of the largest challenges that has arisen is understanding and dealing with cultural differences between people of different countries. It is critical for both parties to a negotiation, contract, joint venture, or other relationship to understand the other’s cultural characteristics. The failure to understand and be sensitive to differences in culture can have disastrous results for the parties’ negotiations and work relationships.
Over the past few years, which have been the main sectors driving construction activity in the US?
One of the main sectors driving construction activity in the US has been green construction. The construction of solar, wind, and other renewable sources of energy is growing rapidly, and along with green building construction, will continue to expand as global warming takes centre stage around the world. In addition, the use of public-private partnerships has and will continue to increase due to the lack of funding available from the public sector, although more effort is needed to develop a reasonable risk-sharing model.
What is the importance of harnessing the benefits of e-discovery in the construction space?
Construction claims are document-intensive and success often turns on the construction lawyer’s ability to marshal and use the documents and data in a cogent, logical and convincing manner. E-discovery, however, starts long before the litigation with the proper contemporaneous coding and entry of data in a party’s own records during construction, particularly when a dispute is inevitable. The party’s own documents should already be harnessed before the litigation begins. The e-discovery of the other’s records needs to be focused and as specific as practicably possible. A party will seldom find the smoking gun in hundreds of thousands of documents resulting from an omnibus e-discovery request, and the lawyer will likely spend untold amounts of money to produce a less-than-convincing array of documents.
What are the key challenges younger construction lawyers may face in their practice and how can they overcome these?
One of the key challenges faced by young construction lawyers is business generation. Business generation is generally driven by high-quality performance; developing relationships with potential clients and others in the industry that are typically the lawyer’s own age and in a similar position; and patiently nurturing these relationships to give them time to grow and bear fruit. However, young lawyers must always remember that business generation starts at home, ie, in the lawyer’s own firm.
Looking back over your career, what is the most interesting project you have been a part of?
The most interesting project I worked on was when I served as a member a half-dozen dispute review boards (DRB) on the Big Dig in Boston. The diversity and complexity of those projects was immense. As part of the DRB, I not only heard and made recommendations on claims, but I also visited the site regularly to observe the construction of the projects and monitored schedule and other aspects of performance. Getting out of the courtroom and becoming a part of a large complex construction project was very satisfying and fascinating and helped in my understanding of the industry.
What is the secret to your success?
Preparation, patience and persistence, combined with a fire in my belly to succeed. Too many people believe the path to success is aggressiveness and the ability to force others to adopt their positions. On the contrary – people are more likely to be moved by common sense and logic delivered in a respectful, calm, and thoughtful manner, particularly if they are given time to make the conclusion on their own.