Every construction GC has three piles on their desk. A speaker at an ethics CLE early in my legal career named them.
The small one up front: the work they love. The medium one in the corner: the work they tolerate. And the large one accumulating out of sight — the work they avoid. He called that one the malpractice pile.
He was right to name it. The work you avoid has a way of coming due. But the image stayed with me for a different reason.
After eight years of legal practice, and before joining my current firm, I spent six years at Black & Veatch — in project risk management, as a project manager on a power generation megaproject, and as Regional Director for GCC Power Generation. Across those roles, the avoidance pile, while serious, was never the most dangerous one.
General Counsel are lawyers, but they are also executives — and like any executive, they have clients of their own. The CEO, the CFO, the Board: stakeholders who measure risk in dollars and quarters, not legal standards and motion deadlines. What makes perfect sense in the legal department’s conference room doesn’t always translate to the boardroom. Bridging that gap is one of the GC’s most demanding roles — and in some ways, harder than what outside counsel face. The GC doesn’t get to pick her clients.
Here is a contract maintenance checklist built around the same idea as my last post: the wall is strongest when both parties show up and walk it together. From project kick-off to senior leadership check-ins, the checklist provides jumping-off points for developing agendas and guiding purposeful communication between owners and contractors together.
Every major construction project comes with risk, whether it’s a warehouse build, a multifamily development or a major renovation. Parties tend to be aligned when things are proceeding as planned. But when something goes wrong—cracked concrete, water intrusion, systems that don’t perform as expected—those interests can quickly diverge.
Hadrian’s Wall in Northumberland. A two-thousand-year-old UNESCO World Heritage Site with superb views and excellent walking.
Robert Frost popularized the now-famous phrase “Good Fences Make Good Neighbors” in his poem, Mending Wall, more than a century ago. The neighbors in his poem would meet each spring to walk together along the wall, each replacing the stones that have fallen on his side.
Frost’s speaker is skeptical and asks why the wall needs to exist at all: “He is all pine and I am apple orchard. My apple trees will never get across and eat the cones under his pines.” But the neighbor is unmoved. “Good fences make good neighbors.”
I have frequently used the Good Fences analogy in discussions about how well-developed contracts may improve or at least preserve owner/contractor relationships, and I am not abandoning the premise. But just as Frost’s poem is not really about the quality of the fence, the lesson here is not about the quality of the contract. It is about the ritual of maintaining it. Both neighbors show up. Both walk the fence. The wall gets mended not because one man decides it should be, but because both agree it is worth maintaining.
“Something there is that doesn’t love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun; And makes gaps even two can pass abreast. …
No one has seen them made or heard them made, But at spring mending-time we find them there.”
Most construction contracts are negotiated carefully, between sophisticated parties, and then filed away. The project mobilizes. The work begins. Owner and contractor go back to their corners, focus on their work, and assume the other side is doing the same.
This works fine. Until winter comes.
In construction, winter comes in many forms: change orders, delayed performance, and supply chain disruptions. None of these are truly unforeseen events. Anyone who has managed or advised on a large construction project knows that change orders will come, that schedules will slip, that conditions will differ from the drawings.
When spring comes, both parties reach for the contract. And what they usually find are the gaps that have formed. Notice provisions may have gone unobserved. Force majeure language may not account for tariff-driven material escalation. Prior schedule or productivity impacts may not have been substantiated. Project challenges like these, if left unaddressed, can leave gaps that undermine the contract’s ability to make “good neighbors.”
“And on a day we meet to walk the line And set the wall between us once again. We keep the wall between us as we go. To each the boulders that have fallen to each.”
Frost’s mending ritual is not complicated. What makes it work is not the sophistication of the process — it is the discipline of showing up. Both neighbors. Together.
Maintaining a construction contract requires the same discipline.
In practice, that means regular, deliberate conversations between owner and contractor about where the project stands and whether they are meeting the contract’s requirements. It means treating the change order process as a shared obligation — documented as it happens — rather than an administrative nuisance. It means revisiting the contract together when circumstances change materially. And perhaps most importantly, it means having difficult conversations up front rather than waiting to see what happens down the line.
The parties who do this — who are diligent in maintaining the contractual relationship together — are far less likely to end up in a courtroom. Not because their projects are free of problems, but because they addressed the problems while they were still problems that could be resolved by neighborly cooperation rather than a legal battle.
“Why do they make good neighbors? Isn’t it Where there are cows? But here there are no cows. Before I built a wall I’d ask to know What I was walling in or walling out, And to whom I was like to give offense. Something there is that doesn’t love a wall, That wants it down.”
Frost’s speaker remained skeptical about the need for a wall and in part, worried about giving offense—perhaps about what the wall said about the relationship between neighbors. It is a reasonable concern. In construction, it frequently manifests as a reluctance to send formal notice, to document a change order while the relationship is still warm, or to insist on contract compliance when the other party is struggling. The instinct to avoid offense is understandable. The cost of acting on it is not.
Clients frequently lament that they avoided providing notice or addressing change as a gesture of good faith, believing both parties would “be fair to each other in the end.” But the paradox is this: the gesture intended to preserve the relationship and avoid offense is often what damages it. When a party withholds notice or stays silent about a developing problem, they are not protecting the partnership — they are building a private version of events that the other party knows nothing about. When spring comes, the relationship fails not because the change order was too large or the delay too long, but because one party knew something the other did not and said nothing. Trust is not preserved by avoiding difficult conversations. It is built by having them.
Good fences make good neighbors. Not because they signal distrust, but because they give both parties a shared structure for managing the inevitable winter events and avoiding the accumulation of gaps.
The best construction contracts work the same way. They are not statements of distrust. They are the shared understanding by which the parties can avoid or mitigate impacts as they occur. So long as both parties show up and walk the line together.
Owen Newman is a construction and energy litigator and international arbitration specialist at Duane Morris LLP in Chicago. Owen previously spent six years managing EPC projects and leading commercial operations for a global engineering and construction contractor—which is where he first learned to walk the line.
Duane Morris has been named a finalist for the 2026 Florida Legal Awards in the Litigation Departments of the Year, Construction category. Honorees were selected by the Daily Business Review and Law.com editorial staff with input from distinguished members of the Florida legal community.
Discourse surrounding force majeure clauses skyrocketed in the wake of COVID-19. Parties to contracts were confronted with the uncertainty of promising future performance when the future was far from certain. In particular, construction contracts felt the impact of this uncertainty through price escalations, tariffs, material scarcity, price gouging, supply chain issues, labor shortages, and myriad other problems. Construction executives must recognize how future uncertainties can affect their business in order to move into the future equipped with knowledge to address critical problems from a position of understanding. Uncertainty is mitigated by recognizing the contractual mechanisms specifically designed to address it, such as force majeure clauses and the law of impossibility. Read the full article on the Commercial Construction & Renovation website.
Duane Morris attorneys will be speaking on the following panels at the Construction Super Conference in Bonita Springs, Florida.
Blueprints for Evolving Compliance: Navigating DEI, FCA, OFCCP & Immigration Under the New Trump Administration Wednesday, December 10, 2025 | 9:45 a.m. to 11:00 a.m.
Duane Morris’ Construction Group is nationally ranked by Chambers USA among the leaders in the industry, with construction attorneys across the United States and around the world. The group’s lawyers provide a full range of legal services to clients in all aspects of construction and government contracting.
In a recent Commercial Construction Renovation article, Duane Morris attorneys Robert H. Bell and Michael Ferri write:
Artificial intelligence (“AI”) is rapidly making its way into the construction bidding process. Contractors now use AI-powered estimating software to perform quantity takeoffs and analyze costs with unprecedented speed. According to the drafting and engineering software giant Autodesk, estimating teams are increasingly using AI and automation, particularly for quantity takeoffs, cost forecasting, and speeding up bid creation. Yet as digital tools become routine, legal rules governing bids still rely on traditional principles. This raises a pressing question: if an AI tool makes a costly error in a bid, will the legal system treat that mistake any differently than a human error? Courts are only beginning to grapple with AI-related mishaps, but early indications suggest AI errors will be handled much like any other bidding mistake. In other words, contractors will likely be held responsible for errors made by their AI tools, just as they are responsible for the mistakes of human estimators or means and methods under their control.
The U.S. construction market is facing a new level of uncertainty driven by international trade decisions as tariffs become more frequent and unpredictable. Few factors unsettle a construction budget faster than uncertainty. When that uncertainty stems from tariff policies—where prices for essential materials can rise sharply with little warning—the impact is felt across the industry. Tariff volatility disrupts finances, supply chains, and project timelines, placing profitability and stability at risk. Read the full Building Design + Construction article by Jose Aquino.
