Kimberly A Hurtado, CM-BIM, LEED associate, is the founder and managing shareholder of Hurtado Zimmerman SC, Counselors at Law, and an adjunct professor at the School of Architecture at Taliesin. Ms Hurtado focuses her practice exclusively in complex construction transactional and dispute resolution matters, with recognised expertise in the implementation of cutting-edge construction technology and project delivery mechanisms. Named in Martindale-Hubbell’s Bar Register of Preeminent Women Lawyers, Ms Hurtado has served on the board of governors of the American College of Construction Lawyers and the governing committee of the American Bar Association Construction Forum, and is a founding fellow of the Construction Lawyers Society of America.
What made you decide on a career in construction law?
My first job was copying blueprints in a job trailer on an old ammonia-based machine in the scorching heat of summer – but I fell in love with construction sites. I ended up putting myself through grad school and law school doing work as a carpenter and painter on commercial and historic preservation projects. The first case that came to me in private practice fortuitously involved a contractor’s claim for extras based on design deficiency. I won a significant award for my client because I could read plans and explain the architect’s design errors for a complex cantilevered roof section, and quickly sought out more construction cases, having found the work fascinating.
Your practice covers both transactional and dispute work. What skills are required to excel in both of these areas?
The skills for each are the same: impeccable attention to detail, careful listening, and a mastery of the applicable law – whether it be the indemnity, insurance, lien, zoning and permitting laws of a jurisdiction where a new project will be constructed so as to properly articulate enforceable contract terms, or the civil procedures, common law causes of action and statutory remedies available for claims before state, federal or international courts and arbitral bodies.
You serve on a number of construction committees. What changes should institutions and corporations be looking to make to strengthen the use of public-private partnerships (P3s)?
The greatest hurdle to the implementation of P3s in the United States has been the lack of state and federal legislation allowing the use of this project delivery mechanism. US public works projects have typically relied on design-bid-build contracting with a “lowest responsive bidder” process to avoid favouritism and to secure optimal pricing from contractors. Many public entities lack mechanisms to seek or objectively evaluate the design-build-operate proposals commonly used for public-private partnership contracting and have very limited or no experience with allowing private companies to run public works activities. As US public entities watch the very favourable results in Canada, Europe and Asia in the form of better coordinated design, faster construction and optimised operations that flow from P3s, more US jurisdictions are experimenting with this delivery method. It is an area where experienced construction counsel may provide significant assistance by helping to integrate best practices and lessons learned from early adopters of P3 into the legislation and governmental administrative practices that will be used to implement this delivery mechanism. In addition, lawyers serving in construction industry trade groups can help develop contract forms and create governmental awareness of the significant financial and operational benefits of this form of contracting.
What are the main advantages that building information modelling (BIM) provides over computer-aided design (CAD)?
Run a cursor over a beam line in CAD and nothing happens. Run that cursor over a beam in BIM and an entire narrative of specifications and design decisions instantly will be available instead of searching elsewhere in the plans, a project manual or change order for that information. It is almost impossible to have mismatched details in BIM – the parametric features of the software automatically and uniformly change each instance where a design element appears whether the change is made to a plan view, elevation, detail or schedule in the model. In addition, the ability to make early and accurate resolution of physical and spatial constraints between various design disciplines’ plans, or between design plans and construction shop models is vastly superior to manual “light table” review. Finally, many sustainability analyses can only be performed based on running simulations on a 3D model of a structure or site. Prudent developers have learned that an investment in initial 3D modelling will yield benefits in the form of reduced operation and maintenance costs over the useful life of their project, creating significant net savings. Energy-efficient building envelope and fenestration, and mechanical, electrical and plumbing systems, are particularly useful elements to be designed using BIM life cycle analysis. Given these factors, I predict that a decade from now, CAD will be used about as often as we currently use ink on linen for designs today.
How is 3D printing impacting construction?
Robotic construction using 3D printing technology is ideal for building in extreme temperature and other hostile environments, such as oceanic, tundra, desert and extraterrestrial construction. It’s difficult to justify the danger to human workers when this alternative is becoming reliably available, using self-assembling, portable printer machines. In addition, there is an ability to print composite materials – glass-metal, plastic-glass, ice and cementitious amalgams – that better withstand the rigours of hostile environments than traditional wood, metal and reinforced concrete materials. Finally, the ability to use liquid printing substrates to create lightweight shapes that could not be produced by machine die cast or other foundry production, and the ability to produce very fine printed detail at microscale, allow for more versatile solutions for bridging and lightweight structural interfaces. I expect to see 3D printing use skyrocket around the planet.
What can be done to limit the damage of climate change to coastal cities and how can lawyers facilitate this?
There has been an unprecedented rate of sea-level rise that is having, and will continue to have, a profound impact on coastal cities around the planet. Urban planners and designers are swiftly exploring rain gardens, bio-engineered stabilisation and levied protection to limit costly damage to existing structures and communities. Hydromorphic structural columns and foundations that flex and deform, rather than fail, when flooded with water, and then return to original undeflected state as water dries out, may play a role in addressing the impact of water-related climate change as well. Lawyers will undoubtedly aid with the implementation of these emerging construction technology solutions, negotiating contracts to implement water control solutions, helping companies prove to permitting authorities the structural integrity of new building materials, and working to secure construction building permit and zoning approvals to protect against sea rise-related damage. In addition, lawyers can help to shape and implement laws and contracts related to regenerative development of coastlines and other fragile environmental corridors.
What advice would you give to someone looking to start a legal practice in construction?
Construction law requires real stamina and excellent recollection, but it will never, ever be dull. The clients you have the privilege of serving will teach you new and fascinating things about construction every day that turn your professional work into a true avocation. Get yourself a hard hat and some steel-toed boots and don’t be afraid get out on the jobsite to learn about the salient factors affecting your claims. Last, but certainly not least, spend time giving back to your community and the planet by offering your time and talents to construction groups and charitable organisations needing assistance with construction-related issues.