Home » Library » American Bar Association - The Construction Lawyer, July 1999, Book Review, How To Get Paid

American Bar Association
The Construction Lawyer - July 1999
Book review: How To Get Paid
Reviewed by James F. Nagle

How to Get Paid for Construction Changes:
Preparation, Resolution Tools and Techniques
Steven S. Pinnell
McGraw-Hill 1998

Oh, joy! Another book on preparing and resolving changes. This subject has certainly been dealt with before (and well), but it is a subject of such constant importance to the industry that new books should be heralded, especially when the package is comprehensive and well presented.

I like many things about the Pinnell book. But understand what it is not. It offers few legal citations and is not a book by a lawyer for lawyers. It is a book by an engineer and consultant with twenty-five years in the construction industry who fights battles over changes.

I reviewed one or two chapters of the book while it was still in manuscript and provided some comments. Ordinarily I would not review the book, except that my role was so limited, and I am only one of eighty-five people mentioned in the acknowledgment section who reviewed the manuscript and provided peer review. That the author would go to such extremes in vetting his work product speaks volumes about his thoroughness.

The book is extremely well organized. Its fourteen chapters provide a step-by-step, easy-to-understand approach to preparing and resolving change order requests and claims. The book has numerous illustrations of such concepts as fragnets and model forms to give the reader an overview of key concepts.

In Chapter I, Introduction and Reader's Guide, Mr. Pinnell summarizes the book and how to use it. He opens with the observation that "How to Get Paid is the only claims book you need." I've never said that even about my own books, so I cringe when someone else says it. Certainly readers of The Construction Lawyer would need another book giving citations to cases, statutes, and regulations. So recognize the opening statement as a bit of publishing puffery and continue reading.

Chapter 2, "Background and Overview of Change Orders, Claims, and Dispute Resolution," describes the history and trends in construction dispute resolution.

Chapter 3, "Overview and Practical Understanding of Contracts and Contract Law," is a review of Contracts 101 with a special emphasis on standard contract clauses.

After these three introductory chapters, the book delves into nuts and bolts. Chapter 4, "How to
Develop and Implement a Change Order Management Program," and Chapter 5, "Preparing and Settling Change Order Requests," stress the importance of having a program in place and having personnel thoroughly trained in the process before contract inception. Trying to impose a claims management program retroactively is a nightmare.

Chapter 6 begins the first of the author's six phases of the claim process. Phase I, "Selecting Claim Preparers," emphasizes there is more than mere selection. You must also oversee and manage the expert. The book has a great many valuable things to say on selecting an expert, to which I would add the importance of checking whether the proposed expert has any positive or negative past relationship with the entity to which you will be submitting the claim.

Chapter 7 deals with Phase 2, "Preparing Preliminary Claims Analyses, Dispute Review Board Presentations, and Small Claims," and offers a synopsis of the entire book. It describes and urges a preliminary, yet detailed, analysis process for claims that is more efficient and effective than rushing headlong into a claim. (A badly prepared "rush" job to get more money quickly may undercut future recovery.) In-house personnel especially need an overview of what the claims process entails.

Chapter 8, "Phase 3-0btaining and Organizing Documents for Review," is critical but is often so basic as to be overlooked in other works. Personnel need to know that a contemporaneous confirmation written on the back of an envelope can prove more valuable than the most exquisitely presented expert graphic prepared three years later.

Chapters 9 through 12 are a primer on some of the common elements of damages. They are by no means a substitute for a construction lawyer, scheduling expert, or accountant; but they are a fine educational tool.

Chapter 9, "Phase 4a-Determining the Facts and Analyzing Entitlement," is in Pinnell’s estimation the heart of the book. It details a logical process of reviewing documents chronologically as the project unfolded from the viewpoints of multiple participants. It also discusses defending against owner counterclaims. Although written from the point of view of the contractor, much of the analysis would also help the owner who reviews a claim.

Chapter 10, "Analyzing Schedule Delay and Acceleration," is an eighty-page synopsis of the subject. Although certainly not an authoritative treatise, it does provide an excellent starting ground and a comparison to Chapter 11, "Phase 4b-Computing Damages," which describes the fundamentals of cost analysis and how to avoid common mistakes. Chapter 12, "Proving
inefficiency," in thirty-five pages discusses major methods of proving this amorphous element that often causes project costs to hemorrhage.

The last two chapters emphasize style, not at the expense of substance, but in recognition of the fact that presentation determines outcome.

Chapter 13, "Phase 5-Comparing Exhibits and Assembling a Claim," is a worthwhile addition because its "picture is worth a thousand words" argument is hard to refute.

The last chapter, Chapter 14, "Phase 6-Presenting a Claim and Negotiating an Equitable Adjustment," has a number of good, common sense pointers without being too dogmatic.

The book is attractively presented and organized, but I would have preferred a more detailed table of contents. For instance, the table of contents only divides a chapter (for example, Chapter 6) into four capital letter segments, while the chapter itself is broken down into two levels below. The numbering system is also a bit confusing. The book does have a detailed fourteen-page index that does not just refer the reader to other sections ("see") as if in a scavenger hunt. Instead, it gives numerous page citations at each listing plus additional references ("see also").

Although this book covers a subject that has been plowed well and often, a good guide to changes does not go out of date in a year as do excellent law-related treatises in many other areas. In that sense, its lack of case and statute citations is no loss.

Many times I have provided a good client with a reference book, and I intend to do so with this book. The client who follows its precepts will be much better prepared when I first get a call asking for advice. The Pinnell book may not be the best book ever written on this subject, although I would certainly rate it among the top two or three.