Rishi Srivastava (00:41)
Today our guest is Brent Zimmerman. Brent, welcome.

Brent Zimmerman (00:45)
Thank you, appreciate it. It's good to be here.

Rishi Srivastava (00:48)
first section is on your career path and industry perspective. You started your career as a construction trial lawyer and eventually became chief legal officer of a billion dollar electrical contractor. What did you learn about the construction industry from sitting in courtrooms that most project managers or executives never see?

Brent Zimmerman (01:11)
I think that's a good question. It's quite a different perspective perhaps. one of the things I think I probably learned and and see things a little bit differently is really just how important it is to be very comfortable with your facts and understanding kind of what's likely to come out in a trial, and understanding really the risks of a trial as well. I think that sometimes the

People that sit in my role probably tend to have a higher percentage of people from a transactional background in law as opposed to litigators. And I think we just see risk maybe a little bit differently. and it's a different in the real world with the back and forth exchange than what people might read about in, say, for example, a reported case from an appellate decision. So it's just a different environment, I think. And it's important to have that background now. I may have

weaknesses compared to transactional lawyers in other areas, but in terms of risk, I think I can prepare my client, particularly those in-house project managers or executives, maybe a little better when it comes to fights and litigation.

Rishi Srivastava (02:12)
So could you help us understand the difference between a transactional lawyer and litigation lawyer?

Brent Zimmerman (02:19)
Sure, absolutely.

So mostly this is probably pretty broad and and maybe not refined enough, but to big picture transactional lawyers tend to work a lot on contract contract matters or say mergers and acquisitions and then litigation attorneys are really focused on lawsuits and things that see the courtroom eventually or settle, obviously, or even alternative dispute resolution reforms like arbitration and things like that. So litigators are really the ones

They handle the disputes. And maybe transactional lawyers try to avoid the disputes based upon the way they craft their instruments and the way that they're serving a particular client.

Rishi Srivastava (02:56)
Thank you. You have represented almost every party in construction, owners, contractors, subcontractors, suppliers, and sureties From that vantage point, what misunderstandings between these groups caused the most disputes?

Brent Zimmerman (03:12)
Alright, I'm gonna answer this maybe a little different than your question, ⁓ and maybe a different perspective. But not so much that any particular interaction between those groups is different, but what maybe all of them don't understand is how important contemporaneous communications are in the record when they actually get into a dispute. The lack of contemporaneous communication, whether that's in emails or project documents or what have you, can really

Rishi Srivastava (03:16)
Okay.

Brent Zimmerman (03:39)
puts you in a weak position when it comes to a dispute and so maybe a lack of understanding there can be a problem.

Rishi Srivastava (03:46)
So contemporaneous communication is something that people are just choosing for communication during the project. Like how do you define that?

Brent Zimmerman (03:55)
Yeah, absolutely. And it's

really critical that it be contemporaneous communication, the stuff that actually happened during the project, when the issues arose, the actual emails that went back and forth between the parties when they were first discussing those issues, rather than waiting six, eight months, a year, maybe multiple years thereof, to then say, we had a problem, but then when I ask you what's the evidence of that, then if you can't quickly turn to the contemporaneous

Rishi Srivastava (04:02)
Hmm.

Brent Zimmerman (04:21)
communications that were happening at the time, then it can really just evolve into a he said, she said type of dispute. And that's very ineffective and maybe a roll of the dice completely in terms of what the outcome may be.

Rishi Srivastava (04:34)
Yeah, actually I was in a trial for my custody case and my lawyer asked me to submit all the text messages that I exchanged with my ex. It's kinda very important. That's how we were proving our point.

Brent Zimmerman (04:45)
Yeah.

Right. Well of the main reasons why I think it's so important in that respect is that one of the things I almost always ask a client very early on, if not in the very first meeting, maybe my first question after they've kind of recounted to me their version of the facts is I always ask, What's the other side gonna say you did wrong? And

Very quickly, one of the ways of examining that is looking at the contemporaneous communications that if there were any, there's often a lot to go on in that respect. You know, it's pretty obvious what the issues are that they're gonna say that happened that might be wrong, because they're usually in their – response. If you sent a letter to the other side or an email saying complaining about particular factor, then you're likely to get the response back. And those are the likely responses you're gonna get later on when you're in a dispute as well.

Okay.

Rishi Srivastava (05:34)
That makes sense. they're also a piece of evidence in my view, you know, those communications.

Brent Zimmerman (05:41)
n and they're and frankly they're the only evidence that's acceptable as long as there's testimony to support it. but testimony after the fact really just evolves into a he said, she said type of dispute without factual backup. I I just feel like those types of arguments can be countered or explained away for a lot of different reasons that you know, perceptions are different, but when you have it there in black and white in writing, it's really difficult to escape those kinds of facts.

Rishi Srivastava (06:06)
You spent about 15 years in private practice before going in-house at Miller Electric. How does the mindset of an in-house construction lawyer differ from an outside litigation attorney?

Brent Zimmerman (06:18)
dramatically in my exper at least for me. So I can only really talk about my experience and what

you know, the outlook is I well I'll start with when I was a young lawyer, I didn't really respect people that did my job. I just didn't think they had what they what it took to cut it in the courtroom. So I had this braggadocious, maybe overly confident attitude about how I approach things and and whatnot. And so I think that's a very flawed belief. Obviously I hold this position today. I feel like my experience had served me well to be here. but at the same time there is a difference.

and I think some of that difference, or maybe for me why it's most important, is having the real world repetitions and litigation that you're just never gonna have as many of as an in-house lawyer representing one client, as opposed to a whole stable of clients, and in very different types of capacities too, as you mentioned earlier, whether it's a general contractor, trades, subcontractors, sureties, insurance companies, I mean pretty much anything that design professionals.

professionals, any any aspect of of the construction process has very different outlooks and so being able to see that from a repetition standpoint in my private practice, I can dip to the gist, I think, very quickly of where things are likely to end up and hopefully

take some of the risk out of that by either not litigating or settling early or knowing when to really press it and and push it to a trial or an ultimate fact resolution.

Rishi Srivastava (07:44)
Yeah, the prior experience that you have as a litigation lawyer must benefit you a lot right now.

Brent Zimmerman (07:50)
R

I I think so. But then I I did mention though, you know, I'm I probably have weaknesses though. I do do mergers and acquisitions as well, and so I'm probably not as strong as someone who spent their entire private practice career doing mergers and acquisitions. So, you know, there's there's pluses and minuses in these things. I'm perhaps stronger on the litigation side of things, which I think is really important for construction because construction is one of the most litigation heavy industries that that exists.

Rishi Srivastava (08:17)
Yeah. The next section is inside construction disputes. This is a story question. You mentioned being involved in mediation with 20 to 25 parties and over 100 people in the room. What does a mediation like that actually look like behind the scenes?

Brent Zimmerman (08:35)
Alright, well, without a very, very, very good mediator, it looks like absolute chaos is what I would say. hopefully that's not the situation you end up in and the parties do have control over who they choose as a mediator or mediators. and so that's a an important factor for me. But with a good mediator it can look somewhat orderly. Now

Within bounds, right? So if you have twenty to thirty parties and a hundred people in a room, it gets pretty unwieldy very quickly. So it takes someone with a very strong personality to command that kind of group. And so again, going to the selection of the mediator is incredibly important. but you'll usually end up in a conference or maybe not a conference room, it's probably the wrong word, but a we'll say a large convention room, usually at a hotel that is a convention center on any of these very large mediations, because you need that large room for

kind of opening statements and general organizational matters, but then you really need as many individual rooms as you have parties because as soon as soon as you have that initial opening statements or administrative matters, you're gonna put all your parties in their own rooms and breakout rooms. And so you need kind of individual conference rooms for each of the parties who are likely to have a few party representatives and a lawyer, maybe an insurance representative with them. So there can be quite a lot of people involved in

And so that's typically kind of what it looks like. It can be very frustrating too. Those very big mediations are usually scheduled for at least two days, maybe three days per mediation. And it often takes multiple mediations on a big dispute with that many parties as well to kind of get to a solution. I guess it'll take as many as you allow it to in some respects, but you know, herding a bunch of cats, or referring to the parties as cats there, and trying to get them to, you know, accept some sort of settlement

Or that they have to kind of come to on their own with obviously the assistance of a mediator, it's a real challenge. So it is an unbelievable skill. It's why these mediators for these big multi-party mediations get paid a tremendous amount of money. They really are their worth their weight and gold and can save the parties a lot of money if they can get an acceptable outcome through the mediation process. So that's kind of what it looks like. It's a lot of people, it can get very

heated and it can be very frustrating for the parties too if it's a long time before they hear from the mediator. Obviously if you have 25 or 30 parties the mediator could you may not hear from them all day the first day after the breakout you know if he hasn't kind of made his way around to all of the parties. So you can feel like you're you're kind of hanging out there without really moving the ball and that sometimes that's the case and that can be frustrating but it's just the reality. I don't know there's a way to really truly avoid that. But you can try to group parties together to avoid some of that but

ultimately they have to kind of break out on their own and and resolve it with their own attorney to make sure that they're on board with a particular potential resolution. So it's it's a challenge logistically.

Rishi Srivastava (11:21)
The one that you were part of, was that a chaos mediation or was it a normal?

Brent Zimmerman (11:28)
I've done I've done both ways,

unfortunately. And the chaos mediations never result in a settlement, essentially.

Now I've been involved in several that took multiple two or three mediations to get to a resolution and it it wasn't an issue of necessarily having a bad meteor. In fact I've had very good meteors that took that many mediations. It's just the complexity of so many different issues. And those things are most likely to happen, at least in my experience, in condominium defect litigation, that's where you're gonna see that the most often because essentially every party usually gets sued. ⁓ you know, that was part of the construction.

Rishi Srivastava (12:00)
Mmm.

Brent Zimmerman (12:03)
all the trades are getting brought in that potentially have any possible liability whatsoever. And so it just it's it's gonna result in all big complicated matter because you have to apportion fault as well, you know, to you have to have a reasonable tie to your damages. You can't just say, I lost this money, so these people must have been responsible for it. You know, you have to tie individual damages dollars to a particular defendant. So

Rishi Srivastava (12:26)
Yeah, construction is such a complicated business. There's so many trades and so many parties coming together to deliver something like a building or a bridge.

Brent Zimmerman (12:36)
Certainly.

Rishi Srivastava (12:36)
Can you walk us through one of the most memorable construction disputes or trials you've worked on and what made it so complex?

Brent Zimmerman (12:46)
From a complexity standpoint, I wouldn't pick a particular one, but I would come back to what I just said in terms of condominium defect defect litigation. Those the most complex ones. Not necessarily the most interesting always, but most complex. Probably the ones that I I found the most interesting have been well actually one in particular I can think of, a building collapse case that I did. it was a collapse during construction. There was a fatality.

It was one of the trades, a number of injuries, and then of course a tremendous amount of property damage. but it was during the final pour of one of the decks of a parking garage and there was a collapse during the pour and it was a huge argument as you might imagine in terms of was it design, construction defect, a combination of both, all these things. I mean and then obviously trying to look at insurance coverages and so forth when you

Rishi Srivastava (13:25)
Hmm.

Brent Zimmerman (13:39)
you have a wrongful death plus a number of very serious injuries, it it can be quite a challenge. And then there was also on I think there was a hundred and fifty million dollars roughly in bodily injury claims as I recall and about forty million dollars in property damage claims. So I mean it was it's just a lot of moving parts and a lot of issues and trying to protect my client as well as possible.

Rishi Srivastava (14:00)
Yeah,

you remember who kind of got blamed for that accident?

Brent Zimmerman (14:03)
Yeah, yes, actually

I do, and I think it was rightfully so. It was the structural engineer actually in that particular incident. and

You know, it's kind of funny. I actually represented a I won't say the name of the party, but I I represented a shoring contractor that was responsible for both for the design of the shoring as well as installing the shoring during the pours. And so as you might imagine, there was a awful lot of pointing coming at my client's direction, but I think we adequately were able to show that the columns were under designed in the building and eventually they're just they reached breaking strength, especially during a

pour because that's one of the heaviest loads that that building's ever gonna see is wet concrete and setting up. So that it was too much for the design and the building collapsed. Unfortunately someone died, you know, so

Rishi Srivastava (14:49)
Yeah.

Know, these buildings they need to sustain not just the normal load, the extreme load that can happen at some point during the construction.

Brent Zimmerman (14:59)
That's right.

And oftentimes with concrete, oftentimes the live load is the highest at the point of pouring the the actual concrete, just because of the evaporation, obviously the moisture, even more so than when they load up the parking garage with cars. It's still lighter at times than when it's the wet concrete.

Rishi Srivastava (15:15)
Most construction professionals assume disputes come from someone doing something terribly wrong. In your experience, how often are disputes actually caused by miscommunication or contract misunderstandings rather than negligence?

Brent Zimmerman (15:32)
in construction I would say that

it's generally not a negligence factor. I mean that does enter into the equation oftentimes, but it's not really the the big thing a lot of times. I'll go back to one of the concepts I talked to earlier. A lack of contemporaneous documentation and communication during the construction process has the greatest likelihood in my opinion. Of course I mean I'm one person, but I in my opinion that has the greatest likelihood of creating a dispute that's very difficult to resolve.

because again, that's gonna devolve into a he said, she said type of thing and i it's really difficult to even convince without litigation, you know, of a reasonable settlement point, but even with litigation, then it's your your best guess is as good as mine of how it's gonna turn out.

Rishi Srivastava (16:15)
Yeah, and people who go into construction, don't enjoy documenting. They enjoy building and other things. So a lot of times the documentation is not there, I feel like, in these disputes.

Brent Zimmerman (16:20)
That's right. Yeah.

Yeah, no, I I think that's right. And additionally I I that's why I spend a lot of my time trying to talk to our project professionals, whether they're project managers, project associates or project executives, I spend a lot of time trying to focus on how to teach their teams what type of documentation works best contemporaneously to make sure that they're having the best success. But and not just in for disputes, but just in general, also monitoring their profit, not having profit fade and things like that.

And it's just, it's good for a lot of reasons other than just disputes.

Rishi Srivastava (16:58)
What are the early warning signs on a project that tell you, quote unquote, this project might end up in litigation?

Brent Zimmerman (17:06)
That's a great question. I wish I could always tell these things because the at the end of the day it might be sort of luck of the draw, but the things that it catch my eye more than not are compounding payment delays are a big warning sign for me, particularly I mean I represent a sub, right? So maybe a very large sub, but n a sub nonetheless. So my pain point, at least what I'm looking for a lot of the time, has to do less with defect.

and things like that and more about what's happening in the payment cycle and why might there be issues with the payment cycle. I'm not gonna immediately you know launch a litigation over over a payment issue. There's often very reasonable reasons why we might have delays in payment and we have to get to the bottom of that and try to understand what might be causing it. But I think more often than not, that's probably the most common factor that I think I would cite in terms of

something that we might have an a an issue. Now actually and let me add to that just a little bit, not just compounding payment of normal payment draws, but also general contractors that have a tendency to stockpile change order proposals and set up dealing with them on a rolling basis as they're as you're coming through the project and with the hopes of kind of getting to the end and then horse trading away, you know, when they're trying to really truly buy out the final project.

Rishi Srivastava (18:09)
Hmm.

Brent Zimmerman (18:21)
I think that's a mistake most of the time, particularly if you're dealing with a very sophisticated trade, like I f I feel like we are. that's just gonna make us very nervous and then we're gonna you're gonna a lot of correspondence maybe from me or that I've drafted from my teams that are gonna talk about, you know, what's going on with payment. You know, again we're gonna have a lot of discussion before there's any kind of dispute process, but we value our clients almost everything we can do is on a return basis, but we still have to have difficult conversations.

you know, routinely. and and that's fine, but we just need to be able to understand ultimately is there reason to be concerned about whether we're ultimately going to get paid and if so, then we're going to have to take steps to protect ourselves.

Rishi Srivastava (19:00)
Yeah,

delaying a difficult conversation, makes it more difficult.

Brent Zimmerman (19:05)
Certainly.

Rishi Srivastava (19:05)
The next section is on trial strategy and legal insights. You shared a fascinating trial strategy where you intentionally tried to seat lawyers on the jury, which most attorneys avoid. How did you come up with that strategy, and how has it played out in real cases?

Brent Zimmerman (19:25)
So I was thinking about that and I've thought about it a lot, you know, over the course of my career, and I I do have I do hold that belief, and I still do, that oftentimes I think it's good to see a lawyer on a jury. I I don't know if I have anyone who influenced me on that because I can't think of anyone that said that was a good idea, and maybe it j maybe it's just through my own ad hoc experience or beliefs that I've come to that. But I truly believe it, and the reason why I I believe it is that

Number one, I believe in only bringing a strong case to trial. So if I end up in trial, I'm very confident in my facts. And at times, particularly in a construction matter, the facts can be extremely complicated and then mixed with very complicated aspects of law. So I have a belief that if you have a lawyer on a jury, they're gonna be, number one, they're 99% of the time going to be selected as the fore person of the jury. So

Most of the jury is going to looking to them about, you know, how do you interpret these facts that we've heard in light of the law and what have you. and I think that the lawyer kind of serves the process purpose or excuse me, a purpose of maybe decoding some of the mystery that you know lawyers by way of procedure, we have to do certain things or ask questions a certain way, or we're allowed to talk about certain things, or not allowed to talk about certain things. And I think a lawyer on the jury can

help the rest of the jury a lot of the times understand

What to make of that, if anything. And they're not really supposed to have that function, frankly, if they do serve on the jury. ⁓ so much of of really explaining the matter to the the other jurors because they should be capable of doing that on their own. maybe they trust in their ability to administer the case more as the fore person. But in reality, I just think it's too natural of a situation not to ask those questions if you have a lawyer on the jury. And and I think it gives it's given

Rishi Srivastava (20:51)
See ya.

Brent Zimmerman (21:12)
Some weight based upon their experience with it. Now, I will say that the only construction cases that are likely to end up in that type of scenario are construction accident cases where the basis of the case is negligence rather than contractual matters or breaches of contract and contract disputes. The reason being is nearly, I'll just go probably over 95% of construction contracts contain a waiver of jury trial provision in there. So they're never going to see the light of day in front of a jury.

Rishi Srivastava (21:17)
Mm-hmm.

Brent Zimmerman (21:39)
but for the ones where that's possible where it's a negligence case outside of contract or some other tort outside of contract, then yeah, I think more lawyers on maybe pay attention to it. Because they're often in the jury pool. I've done it twice. I've I've in two cases I've seated lawyers on juries and it went the way I thought it would on in both of those cases and I have to imagine that the lawyer played some part in that because they were both very technical. they were both defense cases and they were both very technical cases, so I think

That that aspect and that inst maybe instruction or explanation from the lawyer on the jury may may have made a difference.

Rishi Srivastava (22:14)
Yeah. Language sometimes is really complex in these cases. And it's not easy for Tom, Dick, and Harry to understand these languages.

Brent Zimmerman (22:22)
That's right.

I think we ask a lot of jurors in that respect. so yeah, I mean, especially a run-in-the-middle person, you know, your average person off the street, probably has zero construction experience or knowledge or understanding of the details of that, and it's not any insult to the juror or anything, their their intelligence or anything like that. It really is just about how many people really have that experience at the end of the day and and trying to understand some of the vocabulary to your point of the legal language and and what

have you. I try to use normal language, but there are certain things that just maybe don't translate well, you know, and if I'm lucky, a judge will let me try to explain them in layman's terms, but at the end of the day the jury, MSU the judge gets to determine what I get to say and how I get to explain things.

Rishi Srivastava (23:05)
Actually I'm thinking when you're let's say a trial lawyer how can the judge dictate what you say? I you're the trial lawyer

Brent Zimmerman (23:12)
Well, there's all kinds of things

that happen before the st trial starts outside of the presence of the jury, like things called motions and limini. And so those are limiting instructions from the judge, on an order in Lemini of what you may or may not argue in front of a jury and what issues you may or may not bring up in front of the jury. you've probably heard of hearsay before. If I try to introduce hearsay evidence or I go very far on hearsay evidence over an objection, that risks

Rishi Srivastava (23:15)
Huh.

Mmm.

Brent Zimmerman (23:38)
potentially a mistrial and then everyone's upset with you in that case, including the judge and your client and everyone else for wasting their money on a partial trial. So that puts you in a very much a malpractice situation if that happens. So yeah, there's very much limits, particularly in trials, even more so than arbitrations of what you can speak about and what facts you can even introduce into evidence or what you can use as evidence to support your facts.

Rishi Srivastava (24:03)
Yeah,

and part of it probably is these jury people, they're quite impressionable.

Brent Zimmerman (24:08)
They are. They can be. Yep.

Rishi Srivastava (24:09)
You said most serious construction trials today can cost over a million dollars in legal fees and expert costs. At what point does litigation stop making economic sense for a construction company?

Brent Zimmerman (24:25)
I'll give you my opinion on that. I mean this is it comes down to a matter of opinion, but I believe outside of a

contract that has a clear provision or at least or a statute, a clear provision that entitles you to attorney's fees, I would say that at minimum, I I've I've told clients this in the past, at minimum I want at least a million dollars in dispute. To my point that you're you're asking your question on, of where I've seen cases generally speaking, most construction disputes don't get to trial with over a million in fees and in expert costs.

you know, that would just get you even if you want a million dollars. So you know and you didn't have a ba have a basis to recover fees. So I'm gonna say without a clear basis of fees, I mean at least a million dollars in dispute and maybe more, maybe multiples thereof is maybe a better answer today. but haven't been in private practice now for about ten years. So, you know, the the costs aren't getting any lower. that I am very comfortable with because I pay legal bills for outside counsel regularly and I know what it costs. so

Rishi Srivastava (25:20)
Mm-hmm.

Brent Zimmerman (25:21)
Yeah, I I think that we have to really think about the cases that we are going to not necessarily litigate, but at least ones that we're gonna take very far in litigation. Wit you know, litigation itself can be used as a tactic to reach a settlement as well. So I mean i it's

You can look at it various different ways, but if you're talking about ultimate resolutions, very, very few cases go to trial anyways because of that. I mean in construction I would say it's less than five percent of cases go to trial. and I think that I'm being very conservative in stating that. So it's probably a lot less than five percent. But yeah, I think we have to make a very realistic appraisal of our cases before we put our money on the line and really

get too far down the road. You know, that doesn't always make me the most popular lawyer with partners and things like that because I have always tried to give the most reasonable and realistic expectations to my clients and I you know, and maybe sometimes they haven't liked what they heard either. Like, I really don't think you should take this case to trial. I don't think you should litigate. I think we need to find a resolution or an off ramp right now. this is not something that I think is gonna go the way that you think it is, if you were to really test it.

Rishi Srivastava (26:22)
Mm-hmm.

Yeah.

Brent Zimmerman (26:24)
So I I've just

tried to give people honest advice and sometimes hopefully it's been appreciated. So

Rishi Srivastava (26:29)
Mm-hmm.

So have you had a client who is like I don't care about money. I want to send this other party to jail

Brent Zimmerman (26:33)
Sure. Absolutely.

And you know, and so I've heard more than once that money is no object is usually the language that gets used in that situation. And I've never found it to hold true. Not once. So I I've seen people be committed to that for a period of time and enough, you know, thirty, fifty thirty to fifty thousand dollar bills in a month.

Rishi Srivastava (26:45)
Okay.

Brent Zimmerman (26:54)
gets their attention that maybe that's not the best idea and they aren't just folding because we're spending a bunch of money. you know, even that hopefully has never happened or or doesn't happen very often without me telling them I don't think this is a good idea. and sometimes I've I've just had a fundamental disagreement with a client and said, you know, I think you'd be better served with a different lawyer. I don't feel good about taking your money just to you know, unless there's some ultimate strategy that I can decipher I I'm just not likely to want

go for it that way and I can certainly recommend other people for them to talk to but I I try to hold to my basis and making in my integrity too to make sure that I'm providing good advice to someone that I I wouldn't want to receive the advice to go for it myself so I try to make sure that I get the same kind of advice that I'd want from a lawyer.

Rishi Srivastava (27:40)
There is a famous line in the TV show Suits that going to trial is like rolling dice. From your experience, how accurate is that?

Brent Zimmerman (27:50)
That may be the only accurate statement I've heard from suits, but that one I agree with. So going to trial for a number of reasons is like rolling the dice. we often say that mediation is your last chance to control the outcome of a case. Because in order to have a successful mediation, you have to sign on the dotted line and agree to the settlement. So that's your control. That is ultimate control and the outcome. Now, you decide to go to trial, the it is

Anything but in your control what the outcome will be. you got at least a judge at a minimum who would potentially be making a decision, who has his own sets of biases and expectations and understandings and perspectives. Just hearing the facts from a different angle oftentimes puts a very different spin on it and it is hard to remove my own biases, my clients' biases in what we think the outcome ought to be. But you know, at the end of the day we c we can't control perspectives.

We can control understandings. We can do our best through clear communication, hopefully effective communication. But you know, we just can't control it 100% in any respect. And so it really is, and a lot of times, like rolling the dice. And I have seen some very odd results. And sometimes through the other factor that I talked about previously, in terms of motions and limiting and what I can and can't say, the issues can be limited such though that I may not even get to state what I think was the most valuable point.

point that I wanted to make and so that may shape my appetite for settlement in a lot of instances if I'm not gonna be able to put certain evidence on and and what have you.

Rishi Srivastava (29:16)
But I love that show.

Brent Zimmerman (29:18)
Yeah, I I I actually enjoy it. It's just completely unrealistic, but that that is one statement that I would say is incredibly realistic and and real.

Rishi Srivastava (29:20)
Yeah.

The next section is advice for construction executives. What are the biggest mistakes construction executives make when they first bring a dispute to their lawyer?

Brent Zimmerman (29:37)
Already having preconceived notions of what the outcome ought to be. That's the biggest mistake. There's reasons for that, but I mean that's the biggest mistake, and it has to do with lack of experience and what the outcome is likely to be, what the evidence likely shows. And then I'll go back to another thing I said earlier, or I've said numerous times, is that contemporaneous communications, if they didn't have it's not likely to turn out the way that they thought it ought to turn out. And then the other kind of final

thing I would say that really can shape that is not having a good understanding of what the other side's points of attack are going to be, which is why one of my first questions is always, what's the other side going to say that you did wrong?

And that's the basis for it. And then I try to build that understanding. I don't want my clients going into a dispute in the dark of what is likely to happen. I'm going to give them my perspective, hopefully through enough experience to help them understand what a likely outcome is. Am I a hundred percent accurate? No, absolutely not. I mean, again, it's a roll of the dice, but I've got enough repetitions where I think I can maybe be more accurate than an average Joe.

Rishi Srivastava (30:30)
Hmm.

Yeah.

You emphasized something important, extreme ownership, admitting mistakes early. Why does honesty with your lawyer actually strengthen your legal position?

Brent Zimmerman (30:56)
This is the client's opportunity in my opinion to offer the greatest savings to themselves by telling the most accurate picture up front goes again to my point. Tell me what the other side's gonna say you did wrong.

And really have a good appreciation for that. What have they told you so far that you did wrong? Make sure I know every single one of those things, because I can then perhaps read the tea leaves of where it's going. or let's also just spend some time brainstorming about what the other side is likely to say based upon things that happened, or things that happened in my conversations with out with the opposing counsel as we move forward, perhaps after I've already filed a litigation on behalf of a client, you know, there's there's certainly details get discovered thro

through

discovery. And so my attitude or perspective of a case could change 180 degrees along the way, particularly if I haven't gotten that information right up front from the client of what could have saved us a lot of money and time. really important that we have a clear expectation of what the possible outcomes might be.

Rishi Srivastava (31:35)
Mm-hmm.

Do you think truth, only truth and nothing but the truth comes out at end of these trials?

Brent Zimmerman (31:58)
I don't know if trials are a great measurement of the truth, particularly of w how they end up, because again, there is some rolling of the dice. And one thing I will say is that this may be another difference between a transactional lawyer and a litigation lawyer, is that transactional lawyers may read the cases that establish the law and think that that's a very good approximation of what happened in trial when it leaves out a that's just the composite result of what happened in trial. There could have been so many things going this way.

In that way and and what have you, but the judge reported what his ultimate findings were, and he may have left out a tremendous amount of extraneous detail that did not formulate or didn't enter into what he based his decision on. Guess what? We can't control that as a lawyer. What they ultimately base their decision on. Hopefully it's the law, but you know.

with this fact picked and this fact picked and this fact picked and this fact picked and then a bunch of other ones disregarded, you know, that again, we don't have a lot of control over what ultimately forms the basis for their opinion. and so I do think that sometimes that litigation lawyer has a better understanding of how messy a trial can be before getting involved in it. But that is that's reality. That's it that's the way it works.

Rishi Srivastava (33:01)
Hmm.

Have you actually ever seen a judge getting thrown in a jail for bias?

Brent Zimmerman (33:11)
Never. No, never.

Never. I've seen certainly they get overruled, but never never any real penalty have I seen based upon any decisions that they would be totally unrelated. The only thing I've ever seen judges get involved for get in trouble for, excuse me, would be things where pretty much outside the realm of the actual disputes they're working on. You know, they got pulled over or in a for a DUI or something like that and then so they have r there's consequences for that type

Rishi Srivastava (33:30)
Okay

Brent Zimmerman (33:38)
of stuff for a judge, but I I have yet to see a judge really heavily reprimanded in any case I've been involved in. Does it happen? Sure, things happen, but where the judge has a conflict of interest or something like that. But that's either been discovered and we've dealt with it in all the matters I've been involved in as far as I know, or it hasn't happened.

Rishi Srivastava (33:57)
So what percent of the judges are actually being chosen by the people? Or is it like the government or the president choosing them?

Brent Zimmerman (34:04)
So

I I'll speak to how it is in Florida at least because that's really where I'm that's where I'm licensed. I practice in a number of different states, but I haven't really taken a tremendous amount of time thinking about that. And then in the federal system, they aren't elected at all. They're chosen by the President of the United States for US district court judges and then confirmed by the Senate.

That being said, I'm not a huge fan of the election process for judges. that's probably the only place where I'm not, but I I there's a reason for it in that I don't think

Judgeships should be the result of popularity contests, and that's essentially what an election is, is a popularity contest. I think judges should be chosen based upon their credentials to accurately and efficiently determine legal issues. I think that the lay people out there who are going to be voting for that kind of thing have very little understanding of what that is, if even a lawyer does, going just to a polling place and entering their their selection. So in Florida, we have something called

Called a judicial nominating commission, which is a a panel of mostly lawyers, they usually have a couple of non-lawyers on it, and then they make a recommendation to the governor, and then the governor selects and appoints a judge. I think that's the more effective means of it. It still gets political, obviously, but judges in Florida are not allowed to affiliate with a political party for the purpose of the judgeship. But

Rishi Srivastava (35:00)
Mm-hmm.

Brent Zimmerman (35:21)
The reality is they they lean a certain way, and it maybe does affect their outcomes some of the time. I at least in construction I'm not terribly concerned about that. I want the people that are most qualified though or the smartest people being a judge rather than just someone who's popular.

Rishi Srivastava (35:35)
Yeah, actually I'm going to give you something personal. My friend was in front of a judge and he says that she was very biased and she's an elected judge. Just, just.

Brent Zimmerman (35:44)
Yeah, I mean I think

that so

One of my issues w and th this is a huge generalization, but one of my issues with elected judges, at least in the state of Florida, is many of them and there's nothing wrong with this career whatsoever. I think it's absolutely needed and maybe it's the way right way to pick judges for the criminal bench. But more often than not I see elected judges being people who served like, for example, in the state attorney's office or the public defender's office. So they've had unbelievable experience with regard to criminal law, but they've never been exposed

To a civil case ever. Totally different animal, completely different animal, completely different burden of proof. You have beyond every reasonable doubt, or beyond a reasonable doubt, or beyond any reasonable doubt. I mean, depending on the state, that gets said different ways in a criminal matter. Whereas in you know, a civil matter it's just the preponderance of the evidence. So fifty one percent wins, right? So very different standards, very different legal principles involved in con and

civil matters versus criminal matters.

Rishi Srivastava (36:43)
Actually, I want to ask you about burden of proof in these construction cases. What is your opinion or experience on them in real construction trials?

Brent Zimmerman (36:51)
well I I always want more than fifty one percent even now. That I guess is technically what we're looking for is a preponderance of the evidence so I can say fifty-one percent. I'm not gonna have a lot of commo confidence in a case that I feel is fifty-one percent in my favor. and hopefully those are the ones I settle. I would like, you know, we'll call it up a number on it, seventy five percent. Yeah, I'm gonna feel fairly comfortable in an outcome. Hopefully. But that doesn't mean it's gonna

roll my way, but you know, if I feel like seventy five percent of the issues roll my way, then you know, that's a pretty good number in order to be somewhat confident in where an outcome might be. Now

I very rarely and this is why another reason why so few cases go to trial, very rarely do you have that cut and dry of a situation, which is why so many cases settle, because there are so many variables that we just don't know how they could turn out. And you could win, you could lose. Do you really want to spend what I said, you know, over a million dollars to lose yet a million dollars, so that's a two million dollar loss.

Not me. So I mean I think you can make better economic decisions than that and and with your finances and and what have you and what your resources are to maybe settle more cases in those ranges than where you really have very, very strong evidence, then maybe you maybe you go the the full distance on those or at least unless they settle. Like I said, when you're really heavily loaded with the evidence, most most times it settles.

Rishi Srivastava (38:07)
Yeah, well actually a common person like me, I don't like to go to court. You know, it's like too much work. Even though you can pay the money to the lawyers, it's just a lot of stress to like, you got to show up, have good clothes on and look nice in front of the judge.

Brent Zimmerman (38:23)
I I think you're right. No, I'm also a very business minded lawyer, so my boss, my CEO, would rather my project managers and project associates and project executives be doing what they do, which is making money for the company, rather than sitting in a courtroom, right? So and that also shapes whether we're gonna settle or not, because trials and litigations take up a tremendous amount of time from the project people too. It's not like it's just all on the lawyer. I mean it takes a lot of time, depositions, preparing for

Rishi Srivastava (38:48)
Yeah.

Brent Zimmerman (38:50)
depositions, finding documents, going through those documents, reviewing the documents, you know, meeting with your lawyers while they try to understand what all the issues are in dispute. I mean there's just a unbelievable amount of time.

Rishi Srivastava (39:03)
I'm actually glad that people or lawyers like you exist who don't want everybody to show up in courts.

Brent Zimmerman (39:09)
Yeah, absolutely. Absolutely.

Rishi Srivastava (39:11)
What kinds of documentation or project records help a construction company defend itself when disputes arise?

Brent Zimmerman (39:21)
The contemporaneous ones. I'll go back to that. But nonetheless, here's here's the ex categories of documents that I'm always asking for. All the emails in regard to a project are incredibly important. So does they kind of tell the story a lot of the time. If you particularly if you put them in chronological order and just kind of read through them, it really kind of gives you a lot of background of what's going on. So the emails are very important. They they kind of paint the picture. you know, change order requests, change order logs, submittals.

– submittal packages, drawings, shop drawings are often very, very important. The more detailed it is in terms of the specificity of it, a lot of times that is the more important document, particularly if it's germane to the issue that you're talking about. Daily reports, so that is a contemporaneous record of what's happening from the impression of whoever it is that's keeping it. I love those.

And those are probably given the least amount of emphasis these days, but not in my company. our project people know that I'm gonna be asking where's your notes. So it may not be a daily report, a very formalized version of it, but it was a contemporaneous record, whether it was in a daily diary book or what it was whether it was in a computer entry or even an email to themselves. I mean I've seen it done so many different ways, but it's something that has a contemporaneous timestamp on it that can

paint the picture the most accurately rather than someone's memory that either fades, is inaccurate through lying or just not remembering it. I mean there are all kinds of exercises that people do to show how inaccurate memory can be over very short periods of time. So I like the written record that details what the facts were.

Rishi Srivastava (40:55)
I had another guest say that when it's time for a trial, your memory is going to change and it's going to try and help support your case. A lot of times people end up lying in those situations.

Brent Zimmerman (41:11)
Yeah. And they get caught almost every time because it might they probably contradicted their deposition testimony or something else. That's why I always tell my clients answer the question that's asked and only the question.

Because otherwise you're most likely to get yourself into trouble and don't elaborate because you know, y that's where people like to your point, sometimes people get a little loose with the truth there. And I'm not gonna say lie necessarily because a lot of times I think it's even inadvertent. I don't think it's always on purpose as well. I think that's a human nature thing to try to fill in the details and it w and it's not always in fact it's probably mostly inaccurate.

Rishi Srivastava (41:22)
This is…

Yeah.

Definitely. If you could give one piece of advice to project managers to avoid disputes before they start, what would it be?

Brent Zimmerman (41:54)
Get out of construction. No, I don't know. That's that's somewhat a joke. But I think it's in it's inevitable that you're gonna have disputes in construction. But I will say, again, going back to this point that I've made over and over and over again, keep good contemporaneous records. That will minimize the dispute that does arise. It'll put it to bed early, and hopefully give you a successful outcome on the overall project. So keep good contemporaneous records.

Rishi Srivastava (41:56)
Hahaha! ⁓

Brent Zimmerman (42:23)
records always, not just when things go bad. That way you have the good and the bad to show all the way through the project, not just all of a sudden once a problem popped up and then all of a sudden we've got all this documentation. That doesn't look great either. So the best habit that any project professional could ever have, in my opinion, is keeping great records. in their own words and and what have you and giving

context to issues as they come up which may turn into disputes.

Rishi Srivastava (42:50)
point. These people are very busy and you're asking them to become like a record keeper.

Brent Zimmerman (42:56)
yeah, there's I I can't tell you how much I hear about

we're gonna put another thing on the project team. Well, yeah, I I hear you. I hear ya. I mean absolutely and I and I feel for it, but the reality is that it's just necessary in today's legal environment that they're gonna have that's part that to me to me there's three primary functions of a project professional, particularly the way my company works, they do their own business development and so forth. So from the way I look at it, a PM's or project manager's job is really getting the work, doing the work, and getting paid.

The things that support getting paid, contemporaneous documentation. So amongst other things, doing the work properly obviously, but ⁓ but having a good record of it is going to put you in the best position to to collect.

Rishi Srivastava (43:35)
Yeah, yeah.

Makes sense. Looking ahead, as projects get more complex and documentation increases, even including AI tools and massive digital records, how do you see construction disputes evolving over the next decade?

Brent Zimmerman (43:57)
Yeah, AI is tricky. but

You know, AI has at least touched litigation for quite a while in terms of machine learning and things like that and terms of document reviews and stuff. So I'm I'm fairly well versed in some of that aspect of it. Now, true learning by a computer and analytics by a computer, that's a newer thing, right? I think what it does is it's going to as project get more and more complex, it's just going to perhaps make it easier to analyze large data sets.

Which are just part of the deal in construction. You might be able to get at the meat of it quicker. I don't think it's going to decrease the overall cost of litigation. I think it will also continue to drive the number of litigations that go to trial down, but that's not a new factor. This is just another factor towards that trend. And just

I mean legal fees aren't going down. so the cost of litigation continues to rise, the need for experts continues to rise. We might save some time here with the AI and analyzing the data sets themselves, getting through discovery documents, reviewing the documents, ⁓ but you're still gonna have you know you're gonna replace one issue with another. I don't think at any point in time we're gonna see litigation come down, at least not in my foreseeable future. It's not something that although I might like that to happen, I don't s I don't think.

Rishi Srivastava (45:02)
Okay.

Brent Zimmerman (45:15)
that's realistic.

Rishi Srivastava (45:17)
Yes, actually another guest was telling that AI can fabricate a lot of evidence now.

Brent Zimmerman (45:23)
Well yeah,

so you have hallucination issues, yes, coming off of and including making up cases altogether that lawyers have gotten I mean you can see some of the most high hop excuse me, some of the most high profile lawyers in law firms in the entire world have been sanctioned in the last five years for relying upon hallucinated cases in their findings that just didn't get reviewed because they run out of time or the client didn't want to pay or or their own just negligence for not actually following up and checking to see is that case real.

is the proposition that we're citing it for, actually what it stands for and so forth. And I mean you'll see, I mean like I said, I'm not going to say the names, but go do an internet search and you might have heard of some of these law firms that are getting sanctioned just left and right.

Rishi Srivastava (46:06)
And last question here Brent is, you've spent your entire career around construction disputes. If someone wants to stay out of court entirely, like me, what habits should construction companies build into their culture?

Brent Zimmerman (46:22)
documentation, I mean that that's gonna be the best chance of while it might not keep you out of the disputes entirely, it's gonna put them to rest much faster having that contemporaneous record that you can point to at any point in time, just getting in the habit of keeping great records.

Great narratives as well around an issue, emails, learning how to effectively email around an issue to point those issues out. I mean I we I work with our project teams regularly. I put on seminars inside the company regularly of kind of what the best way is of preserving evidence and what ultimately gets relied upon if we do have a dispute. So I try to teach that as much as possible and why it is instead of just saying, hey, just do this, which sounds

a lot of work and it is a lot of work to the to their point. but if they can really understand the basis and the reason and what it's going to avoid in the long run, particularly if it's one of our project professionals that has had the unfortunate experience of being in a dispute, then they are more likely to absolutely take my advice. Now if someone's never felt the pain before, you know, or hasn't been around for very long and you know they might want to test the waters, I guess, and see if it if they think it's fun, I've yet to find the person that really wants to be involved in them all the time.

Other than me, I suppose as the lawyer, which is fine, but I mean that's what I do. which I mean I don't do that much anymore. Now I generally hire and manage outside lawyers that are doing it for us, but to the extent that that's what's going on, if we end up in a dispute for whatever reason, I'm not likely to handle it other than overall strategy of where I'm gonna say, All right, we're gonna fold or keep going or settle here.

Rishi Srivastava (47:31)
You

Actually, I have one more question. When are you hiring these outside lawyers? What are the qualities you are looking for?

Brent Zimmerman (48:00)
So other than just people I've worked with, I hire my old law firms somewhat regularly because I know who and I pick the lawyer who I want working on my matter. the other characteristic I look for a lot of the times and I've hired somewhat regularly in my role particularly as chief legal officer of of a large subcontractor is people have beat me.

people have beaten me in the past and I felt like they really had my number. you know, really on every time I tried to adjust and I and I feel like I'm pretty good, you know. I mean I'm I'll I'll I'll say that. I'm fairly confident in my ability. but certainly, you know, I've been beaten. I'd I'd be lying to say that I hadn't been beaten a number of times. I know I've I've been around long enough and been in enough disputes where I've I've certainly lost my share.

I I try to find those people and I'm one working for me. And so yeah, I've hired a number of lawyers who have either d done some damage to a client of mine and I thought they were doing really well or or they just outright beat my arguments. So

Rishi Srivastava (48:49)
Yep.

feel like you're not a lawyer, you're a businessman now.

Brent Zimmerman (48:58)
well, you know, I've been accused of that by my CEO. So which I think was why he hired me because he just said, you know, he he wanted me to be a business minded lawyer coming in here. and I always had that little bit of approach and I've talked a little bit about that and trying to be very honest with my clients. I can see how expensive it is. I mean, I've sent out the bills, I paid the bills in this seat. so yeah, it's I think we lose our value as lawyers if we're not telling the right story to our clients.

Rishi Srivastava (49:20)
Brent, it was great having you on the show and I always love talking about law.

Brent Zimmerman (49:25)
thanks. Appreciate it. It's been great. I I've really enjoyed it, for sure.