Tuesday, December 11, 2018

Ten Years of Musings. Wow!

birthday photoWho knew that 10 years ago, this tiny announcement post would have spawned a blog that lasted this long?  I sure didn’t.  Back then, this blog was on the Blogger platform and I started it basically on a whim to see whether I would enjoy the process and learn something.  I found that the answer was “yes” on both counts.

The blog has since taken on a life of its own in many respects, allowing me to meet some of the great construction pros that have provided a guest post or two for Musings and adding their different perspectives.  Musings has also kept me up on at least most of the trends in Virginia construction law by making me post consistently (though sometimes less consistently than others).  Now, 791 posts and ten years later, I find it hard to believe that so much time has passed and effort has been put into what started with a vague idea that I’d post from the perspective of a Virginia construction lawyer

Over the last 10 years my children have gone from little kids to college (the older two) and high school and I couldn’t be more proud of each of them.  These three are a great joy for me to watch grow up. Our two dogs continue to make life more furry, warm, and loveable and, saving the very best for last, my wonderful, supportive and beautiful wife continues to make life at the Hill house a great place to live. Without the support of the world’s best family, Musings and the practice of law wouldn’t be the fun that it is.

On the professional side, I was named for the 12th straight year (and all 8 years as a solo) to the Virginia Business Legal Elite in Construction Law.  I joined the Virginia Bar Association Construction and Public Contracts Law Section Council.  I was privileged to both help plan and also speak at the 39th Annual Construction and Public Contracts seminar (if you didn’t make it this year, be sure to make it next year), and while my terms on the State Bar Construction Law and Public Contracts section committee have ended, I still remain active in both that section and the Associated General Contractors of Virginia.  I also kept up my mediation practice and my certification as a mediator here in Virginia.  As always, I’ve also gained some new friends and rekindled some old friendships both in the legal and construction communities.

So without further ado, thanks to all of you who read Construction Law Musings. Thank you to all of my friends, clients and colleagues who support this construction law blog and my construction law practice (you know who you are and it would take weeks to list you all). And, most importantly, thank you to my great family for all that you do to support me in my solo career and my life in general. You all have made the last ten years of Construction Law Musings a fun and rewarding ride.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Ten Years of Musings. Wow!

birthday photoWho knew that 10 years ago, this tiny announcement post would have spawned a blog that lasted this long?  I sure didn’t.  Back then, this blog was on the Blogger platform and I started it basically on a whim to see whether I would enjoy the process and learn something.  I found that the answer was “yes” on both counts.

The blog has since taken on a life of its own in many respects, allowing me to meet some of the great construction pros that have provided a guest post or two for Musings and adding their different perspectives.  Musings has also kept me up on at least most of the trends in Virginia construction law by making me post consistently (though sometimes less consistently than others).  Now, 791 posts and ten years later, I find it hard to believe that so much time has passed and effort has been put into what started with a vague idea that I’d post from the perspective of a Virginia construction lawyer

Over the last 10 years my children have gone from little kids to college (the older two) and high school and I couldn’t be more proud of each of them.  These three are a great joy for me to watch grow up. Our two dogs continue to make life more furry, warm, and loveable and, saving the very best for last, my wonderful, supportive and beautiful wife continues to make life at the Hill house a great place to live. Without the support of the world’s best family, Musings and the practice of law wouldn’t be the fun that it is.

On the professional side, I was named for the 12th straight year (and all 8 years as a solo) to the Virginia Business Legal Elite in Construction Law.  I joined the Virginia Bar Association Construction and Public Contracts Law Section Council.  I was privileged to both help plan and also speak at the 39th Annual Construction and Public Contracts seminar (if you didn’t make it this year, be sure to make it next year), and while my terms on the State Bar Construction Law and Public Contracts section committee have ended, I still remain active in both that section and the Associated General Contractors of Virginia.  I also kept up my mediation practice and my certification as a mediator here in Virginia.  As always, I’ve also gained some new friends and rekindled some old friendships both in the legal and construction communities.

So without further ado, thanks to all of you who read Construction Law Musings. Thank you to all of my friends, clients and colleagues who support this construction law blog and my construction law practice (you know who you are and it would take weeks to list you all). And, most importantly, thank you to my great family for all that you do to support me in my solo career and my life in general. You all have made the last ten years of Construction Law Musings a fun and rewarding ride.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Monday, December 10, 2018

When is a Contract not a Contract?

drill photoAs I’ve stated numerous times here at Musings, in Virginia the contract is king.  The courts of Virginia will read a contract as written and where there is a contract (read as foreshadowing), the courts will assume the parties knew what they were doing and enforce it by its terms.  However, there has to be a contract in the first place.

When can something look like a contract but still not be a contract?  When there isn’t mutual assent according to the case of Knox Energy, LLC v. Gasco Drilling, Inc. In the Knox case, along with a ruling on discovery abuse that is a topic of other blogs, considered a jury instruction on mutual assent given by the district court in a case where Knox contended that it inadvertently sent an unexecuted drilling contract form to Gasco and then inadvertently executed it when Gasco returned it.  While this would not normally cause this series of events to be a non-contract, Knox also contended that Gasco knew that Knox had no intention to enter into the drilling contract and that Gasco jumped at the deal.

After hearing the evidence, the jury was instructed on the basic law of mutual assent and contract as follows:

For a contract to exist, the minds of the parties must have met on every material term of the alleged agreement. Whether the minds have met is a question of intention. For there to be an agreement, the parties must have a distinct intent common to both and without doubt or difference. Because the offer and acceptance may be by word, act or conduct, a meeting of the minds may be shown by direct evidence of intent, or by indirect evidence of facts which imply intent. If a party’s words or actions warrant a reasonable person in believing that it intended a real agreement, its contrary, but unexpressed, state of mind is immaterial.

A party cannot snap up an offer that is too good to be true. If either party knew, or should have known, that the other had made a mistake with respect to the alleged agreement, then there was no meeting of the minds, and no contract.

After the jury held for the plaintiff, Gasco appealed and argued that this instruction misstated Virginia law for various reasons further explained in the text of the opinion.  The 4th Circuit disagreed stating that mutual assent has to be present for a valid contract to exist and that the instruction quoted above correctly stated the law.  In short, a party cannot seek to take advantage of what it knows is a mistake by the other and still enforce a contract.

Does this mean that every mistake will get you out of a contract? I doubt it.  However, all is not lost if a party can show that the other side was snapping up an offer that is “too good to be true” and knew that a mistake was at hand.

As always, I recommend that you read the opinion yourself and draw your own conclusions.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

When is a Contract not a Contract?

drill photoAs I’ve stated numerous times here at Musings, in Virginia the contract is king.  The courts of Virginia will read a contract as written and where there is a contract (read as foreshadowing), the courts will assume the parties knew what they were doing and enforce it by its terms.  However, there has to be a contract in the first place.

When can something look like a contract but still not be a contract?  When there isn’t mutual assent according to the case of Knox Energy, LLC v. Gasco Drilling, Inc. In the Knox case, along with a ruling on discovery abuse that is a topic of other blogs, considered a jury instruction on mutual assent given by the district court in a case where Knox contended that it inadvertently sent an unexecuted drilling contract form to Gasco and then inadvertently executed it when Gasco returned it.  While this would not normally cause this series of events to be a non-contract, Knox also contended that Gasco knew that Knox had no intention to enter into the drilling contract and that Gasco jumped at the deal.

After hearing the evidence, the jury was instructed on the basic law of mutual assent and contract as follows:

For a contract to exist, the minds of the parties must have met on every material term of the alleged agreement. Whether the minds have met is a question of intention. For there to be an agreement, the parties must have a distinct intent common to both and without doubt or difference. Because the offer and acceptance may be by word, act or conduct, a meeting of the minds may be shown by direct evidence of intent, or by indirect evidence of facts which imply intent. If a party’s words or actions warrant a reasonable person in believing that it intended a real agreement, its contrary, but unexpressed, state of mind is immaterial.

A party cannot snap up an offer that is too good to be true. If either party knew, or should have known, that the other had made a mistake with respect to the alleged agreement, then there was no meeting of the minds, and no contract.

After the jury held for the plaintiff, Gasco appealed and argued that this instruction misstated Virginia law for various reasons further explained in the text of the opinion.  The 4th Circuit disagreed stating that mutual assent has to be present for a valid contract to exist and that the instruction quoted above correctly stated the law.  In short, a party cannot seek to take advantage of what it knows is a mistake by the other and still enforce a contract.

Does this mean that every mistake will get you out of a contract? I doubt it.  However, all is not lost if a party can show that the other side was snapping up an offer that is “too good to be true” and knew that a mistake was at hand.

As always, I recommend that you read the opinion yourself and draw your own conclusions.

If you find this Musing to be interesting and have a comment, please join the conversation below and subscribe to keep up with the latest information.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Thursday, December 6, 2018

Humility (and a lighter touch) Can Help Your Construction Marketing

Originally posted 2017-12-25 10:00:04.

Construction Marketing IdeasThis week, Musings welcomes back Mark Buckshon of the Construction Marketing Ideas blog to Guest Post Friday. Mark publishes several regional construction industry newspapers and websites. He can be reached at 888-432-3555 ext 224 or by email at buckshon@cnrgp.com.

Recently, in co-ordination with my business’s primary business consultant Bill Caswell, we coordinated a Webinar, Taking Your Construction Business to the Next Level. The participants enjoyed the event and discovered value in Bill’s insights, but I know I must give myself a large “F” for preparation and testing.  I simply did not allow enough rehearsal time to fully understand the Webinar software, so when our guests were waiting for the program to begin, I fumbled over technical details and we couldn’t use all of the online Webinar software’s functionality.

After the event, Caswell said he didn’t enjoy the lack of face-to-face interaction with participants.  They could communicate by text messaging but, even though DimDim’s advanced software allows a second camera and the ability to switch microphones, the rules of the game are different when people are located in many different locations (and in my rush to overcome the technical problems from lack of preparation, we couldn’t access these useful functions.)

DimDim’s software is free for Web presentations with 20 or fewer participants, and its fees for larger events and greater functionality are truly reasonable.  You can access the service at http://www.dimdim.com.

I made another mistake in the event’s advance marketing.  I tried out various types of event promotion software and went past the stage of reasonableness to overkill in repeated promotional messages.  One reader  sent me his forthright opinion.  “I’m really getting tired of your repeated Caswell promotions,” he wrote.  Following up to my apology, I communicated:  “BTW, I truly appreciate this because it raises a question:  When is there “too much” marketing?”

His response:

In response to your question, as Seth Godin says, “It’s all about me….me, me, me.” Readers are only interested in themselves (myself included). I believe there is a frequency “line” you can cross by marketing too much. Below the line represents value to the consumer (because you are making me aware of the product) and above the line represents meaningless (you’re wasting my time) promotion. Each of us draw the line in a different place, but we do draw a line.

So, it seems I over-marketed the event, while under-preparing the technical aspects, leaving the presenter in a frustrating situation where he had to proceed in a framework of discomfort.  Will Bill Caswell ever want to do this sort of thing again?  Will I want to go forward with other Webinar-type programs in the future?

The answer, in part, is that if we don’t try new things and learn from them, we cannot grow. But you can never prepare too much and if you are using various marketing methods, you should never forget that even if they are readily available and easy to use, you should always respect the frequency and volume of messages you deliver.

Lessons learned . . .

P.S.  After this posting, several readers – including Chris Hill – commented favorably, and the person who sent me the original complaint sent me a courteous email thanking me for accepting responsibility for my mistakes; showing the power of authenticity and humility in marketing. But I hope I don’t make these mistakes again.

Bill Caswell’s website is http://www.caswellccc.com.  It includes a useful free (and extremely quick) resource of answers to some of the most common and challenging business questions.

As always, please join the conversation with a comment below and contact Mark for more.  If you enjoy what you’re reading, please subscribe to keep up with the latest Construction Law Musings and check out the other Guest Post Fridays here at Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.