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Construction Law CONSTRUCTION LAW THE MOST POPULAR CONSTRUCTION CONTRACT DOCUMENT GETS A MAKEOVER: 4 A SUMMARY OF KEY REVISIONS TO THE AIA A201 BY JEREMY P. BRUMMOND AND PATRICK J. THORNTON SHOP DRAWINGS AND SUBMITTALS: PURPOSES, 10 PROCESS, AND PROBLEMS BY KENNETH A. SLAVENS CONSTRUCTION CONTRACTS AND THIRD PARTY BENEFICIARY CLAIMS 18 BY JOSEPH C. BLANNER CONSTRUCTION DAMAGES UNDER MISSOURI LAW 26 BY JAMES R. KELLER MECHANIC’S LIEN WAIVERS – A SEEMINGLY SIMPLE CONCEPT WITH SIGNIFICANT IMPLICATIONS 34 BY JACKSON D. GLISSON, III Vol. 64, No. 2 Fall 2017 VOL. 64 FALL 2017 NO. 2 President ................................ Edward L. Dowd, Jr. President-Elect ................................John G. Simon ARTICLES Vice President ...................................... Sara G. Neill The Most Popular Construction Contract Document Gets a Makeover: A Secretary ........................... Hon. Kendra R. Howard Summary of Key Revisions to the AIA A201 Treasurer ......................................Willie J. Epps, Jr. By Jeremy P. Brummond and Patrick J. Thornton ..................................... 4 Immediate Past President ................Eric Kukowski ABA Delegate ................Hon. Jason M. Sengheiser Shop Drawings and Submittals: Purposes, Member-at-Large ......................Kristine H. Bridges Process, and Problems ...............................................Anne-Marie Brockland By Kenneth A. Slavens ............................................................................... 10 ................................................................A.J. Bruning Construction Contracts and Third Party Beneficiary Claims ...............................................................Kerry C. Feld By Joseph C. Blanner ................................................................................... 18 .................................................John J.Fischesser II. Construction Damages under Missouri Law ........................................................ Annette P. Heller By James R. Keller ........................................................................................ 26 .................................................Carolyn M. Husmann Young Lawyers’ Division ....Alexander L. Braitberg Mechanic’s Lien Waivers – A Seemingly Simple Concept With Significant Criminal Law ........................ Talmage E. Newton IV Implications Employee Benefits ........................ Kara D. Krawzik By Jackson D. Glisson, III ........................................................................... 34 Family & Juvenile Law ................Cynthia Garnholz Labor & Employment Law .......... Natalie J. Teague Minorities in the Legal Profession FEATURES .............................Hon. Nicole J. Colbert-Botchway Patent, Trademark & Copyright The President’s Page: Part I - ......................................................... Kyle G. Gottuso America’s Sentencing Policy – Lock Them Up Probate & Trust Law ................... Laura K. Hewgley By Edward L. Dowd, Jr. ............................................................................... 3 Securities ................................. Andrew M. Hartnett History Solo & Small Firm Practitioners ...Rebecca J. Grosser Judge Luke Lawless’s Transcendent Charge to the Grand Jury Taxation ............................................. Omar D. Malik By Marshall D. Hier ................................................................................... 38 Trial ..............................................Timothy J. Lemen Women in the Legal Profession .Sherri Thompson Books in Brief ...................................................................................................... 42 Pillars of Justice The St. Louis Bar Journal (ISSN 05813344, USPS By Owen Fiss (Harvard University Press - $27.95 - 209 pages) 002055) published quarterly for $12.00 per year for mem- bers, subscriptions for non-members not available, by The Reviewed by Judge Arthur Litz Bar Association of Metropolitan St. Louis (BAMSL), 555 Washington Avenue, Suite 100, St. Louis, MO 63101-1249 The Brief Case (314-421-4134). Periodicals postage paid at St. Louis, Missouri, Postmaster: Send address changes to: The St. By Charles A. Weiss .................................................................................... 43 Louis Bar Journal c/o The Bar Association of Metropolitan St. Louis, 555 Washington Avenue, Suite 100, St. Louis, Tax Wise MO 63101-1249. The opinions expressed herein are those of the authors and are not necessarily in conformity with By Richard M. Wise .................................................................................... 47 those of the editor or with those of The Bar Association of Metropolitan St. Louis. Direct advertising inquiries to Jen- nifer Mackie at (314) 421-4134. Acceptance of advertising does not imply endorsement of products advertised or listed nor of statements concerning them. Board of Editors Editor-in-Chief - John C. Rasp Charles A. Weiss Marshall D. Hier Richard M. Wise The Hon. Arthur Litz Copyright © 2017 by The Bar Association of Metropolitan St. Louis THE ST. LOUIS BAR JOURNAL/ FALL 2017 1 2 THE ST. LOUIS BAR JOURNAL/ FALL 2017 The President’s Page By Edward L. Dowd, Jr. Part I - America’s Sentencing Policy – Lock Them Up America’s war on drugs has become ed to be warm? who have murdered, committed vio- a war on the American people. China, a totalitarian dictatorship, lent sexual assaults, robbed and shot One thing is clear about the sentenc- has about 1.7 million prisoners, many other people should be given very ing taking place in the United States less than the U.S. and also has four heavy sentences. Murderers should - we are mindlessly incarcerating an times our population. If you are an receive life in prison, or, in the most incredible number of non-violent of- African American male, you have a extreme cases, the death penalty. fenders. The New York Times found it one in three chance of being jailed or When I was the U.S. Attorney, I pros- startling that the United States has less imprisoned. The land of the free? You ecuted death penalty cases and have than five percent of the world’s popu- must be kidding. had defendants sentenced to death. I lation, but an absolutely astounding 25 David L. Hyatt was a Vietnam vet- personally prosecuted rapists, carjack- percent of the world’s prisoners. We eran who was non-violent but was ers and other murderers and none of have over 2.3 million prisoners behind convicted of a cocaine conspiracy those criminals will ever leave prison. bars. If we need to imprison that many when he was 43 years old. He died Those ultra-violent offenders had to to protect people from violent crimi- after serving more than 20 years in be removed from society due to the nals, so be it, but that is not the case. prison. He claimed innocence. He viciousness of their crimes and to Nearly one-half of the people in- was sentenced to a mandatory life protect our citizens. However, one carcerated in our state prisons in sentence by U.S. District Court Judge has to look at the facts of each case to 2015 were convicted of non-violent David D. Dowd. Judge Dowd said, determine how harsh or how lenient crimes. Not only do American pros- “Once again I question whether the a sentence should be, or if a potential ecutors and courts send hundreds of life sentence that I was required to defendant should even be charged. thousands of non-violent offenders to pronounce makes good policy in the Since the 1980s, politicians have suc- prison, our system frequently man- long run.” “The Court notes that the cessfully passed draconian sentenc- dates that the court impose very long petitioner did not kill anyone even ing laws, including the United States sentences on non-violent people. though he is serving a life sentence.” Sentencing Guidelines, in an effort to The U.S. stands alone in the world The Judge said, “I think like almost prove that they are tough on crime. in its willingness to sentence people to every other District Court judge in the Some judges that have to run for office life in prison. The ACLU reported that United States, at times we have ex- wanted to avoid any opportunity for there were 3,281 prisoners in America pressed frustration with the straight- their opponent to claim that they were serving life sentences for non-violent jacket the guidelines represent . .” soft on crime so no mercy was shown. crimes. The Washington Post reported Although the guidelines are no longer Mandatory minimum sentencing that a woman named Sharanda Jones strictly mandatory, they inaugurated laws sound good if you are running received a life sentence for her first co- extremely harsh sentencing, as well as for office as a tough on crime U.S. caine offense. She was convicted of a punishing defendants who exercised Representative or a state senator, but drug conspiracy and her sentence was their constitutional right to a trial by it takes the sentencing decision away enhanced due to the actions of other jury. There are still many mandatory from a judge who actually knows conspirators. This is a grotesque in- sentencing statutes that are absurdly the facts of a case and has all of the justice. Timothy Jackson was given harsh. information available about each de- a life sentence for shoplifting a jacket According to the Department of fendant and their record and life. We worth $159.00. Justice, over 60 percent of people who are wasting lives and an astounding Leslie Chew stole blankets to keep are in jail are there for small-time, non- amount of money on incarcerating warm.
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