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20 Constr. Litig. [1] (2011)

handle is hein.aba/cstrul0020 and id is 1 raw text is: - mConstruction Litigation Committee http://apps.americanbar.org/Iitigation/committees/construction SUMMER 2011 VOL.20 NO.1 Interpreting the Federal Arbitration Act: May an Arbitrator Issue a Prehearing, Nonparty Subpoena? By Lisa Colon Heron and Justin S. Wales Lisa Colon The age-old tenet that time equals Heron money is never truer than when speaking of litigation. As the costs associated with liti- gation have skyrocketed, alternative dispute resolution has become the favored method of resolving cases in the construction industry. The rationale underlying al- ternative dispute resolution is that, by allowing parties to contract themselves out of the courtroom, we allow them to avoid all of the inefficiencies that go along with being inside the courtroom. We are, in other words, allowing the parties to contract the right to control their case. Arbitration promises such control and has become the standard method of resolving construction disputes. Through a streamlined discovery Justin S. process, accelerated hearing sched- Wales ule, and the ability to have a case heard by arbitrators sophisticated in the disputed subject matter, arbitration offers the parties involved a cheaper, more efficient alternative to traditional litigation. A problem arises when a nonparty possesses infor- mation needed by a party to develop its case. Imag- ine a scenario common to construction disputes: A property owner hires a general contractor to complete a large-scale renovation project on an existing office building. The general contractor hires subcontractors Continued on page 11 Unresolved Legal Issues with Modified Total Cost Claims By Jeffrey P. Aiken and Michael D. Aiken Jeffrey R The modified total cost (MTC) claim Aiken has developed case by case without a comprehensive assessment of several key issues that affect its utility and applicability in the face of other established principles of construction law. This article generally traces the different approaches to the MTC Michael D. claim under state and federal law, Aiken and then explores some of the more problematic issues not yet authoritatively discussed in either forum. Because an MTC claim is truly nothing more than a modified version of a total cost claim, it is Continued on page 14 1 - Published in Construct!, Volume 20, Number 1, Summer 2011. D 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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