Bruce Meller has been a partner at Peckar & Abramson since 1979, and an integral part of its growth from a three-man local law firm to the national construction firm it is today. Mr Meller has represented every member of the construction chain, which has afforded him the benefit of learning the goals and interests of each party, be it the largest of owners or construction managers, or the smallest of subcontractors. This insight has afforded him the ability to author contracts and resolve disputes throughout the United States and Puerto Rico, on virtually every type of building and civil construction project.
What inspired you to pursue a legal career?
I went to law school to better prepare for a meaningful business career, with no predisposition to actually practise law. Once I left academia I began to work as a lawyer and became enamoured with the mental challenges of problem-solving the complex factual issues inherent in a construction dispute.
How has the construction industry changed since you first started practising?
In addition to technology, the largest change has been the evolution of the manner of project deliveries from hard bid to the now prevalent guaranteed maximum price (GMP), design build and public-private partnerships (P3s).
What are the most common sources of construction disputes and how do you think clients can minimise the risks of them occurring?
Companies used to schedule projects using a simple bar chart and coordination among trades. With the advent of technology and the critical path method (CPM), the schedule is now more of a litigation weapon than a normal job tool. Intense competition in the industry leads to lower construction management fees, lower subcontractor prices and the assumption of greater risk in order to get the job. Contributing to this is the perception of certain owners that any disputes that arise must relate to responsibilities of the construction manager, whatever the cause, rather than the truth, that job issues are rarely the fault of only one party. The term “partnering” is too often only a buzzword without recognition of the mutual interests of all parties in profitable delivery of a project. Aside from contracting and communication, the education of all parties in the preconstruction process as to roles and responsibility can limit disputes.
On what matters have general contractors asked you most for advice over the past year? What would you say is driving this?
Practising risk management in a practical way and educating personnel to recognise that delivering the project and protecting rights are of coexistent importance. Stated otherwise, a construction manager that performs no trade work must be contractually “Teflon” and not “Velcro” so that rights and responsibilities remain with the correct party to the chain. Likewise, the availability of labour in a tight market is a natural strain on productivity. We are seeing an increasing number of schedule-based claims, and labour shortages contribute to that.
How do you see public-private partnerships developing in the future?
The contracting “partner” takes a large risk in these mega projects which are high in contract value and responsibility but not necessarily profit. The public partner needs to realise that these agreements do not make them bulletproof and that a true partnership must exist to the betterment of every member of the chain without placing undue risk on any one party. Absent a change in philosophy by the public partner, I am not optimistic that this delivery method will continue as some respected companies are now withdrawing from this market. To be successful, a public-private partnership must be that – a partnership – and there must be a mutual recognition and respect for the positions of the other parties. It should not be treated as a hard bid adversarial relationship.
What are the main challenges facing younger construction lawyers today?
The main challenge facing younger attorneys is the ability to gain meaningful experience, especially in the courtroom. “Growing up” in a small firm, I had hands-on responsibility early. My first exposure to a trial setting was to watch a half-day arbitration. My second exposure was to try a case. I learned to try cases by watching my adversaries who were more experienced than I. Given the large numbers at stake in any case going to trial today, younger lawyers simply do not get the opportunity to learn by doing the job, watching their adversaries perform and then practising what they learned.
How does mentoring younger practitioners at your firm form part of your day-to-day practice?
It is an integral part of my day-to-day work. I believe that for a firm to continue to thrive, the more seasoned attorneys must meaningfully, with guidance, transition matters to younger attorneys. Mentoring is much more than discussing the law. It involves sharing your experience in the applicable forum and developing strategies on how to sell your clients’ position to the fact-finder, based on what appears to be the truth based on the facts. In doing so, I try to exercise a balance between guidance and insistence on independent thought to challenge my views. It is a way to overcome some of the limitations on experience that confront younger attorneys in a courtroom environment and in resolving large complex disputes.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
Nothing. I only want to continue to counsel my long-standing clients and help guide our younger attorneys so that Peckar & Abramson, our clients and the construction industry continue to grow and prosper.