The “Black Box” Theory

The “Black Box” Theory

The “Black Box” Theory


Harry Bosch is one of my favorite characters in literature. If you read Michael Connelley’s books, you will know that Harry Bosch is a LAPD Detective  who was also a former “tunnel rat” with the 25’th Infantry Division in Vietnam.  Bosch solves the most difficult of murder cases despite efforts from others to discredit his work. Harry Bosch has a theory that  most every case has a “Black Box” similar to those which are used by the airlines to record every word in the cockpit as the plane goes down. When found after the crash, this “Black Box” is the key forensic tool that ties  the disjointed evidence together as to cause.  Harry Bosch uses his unique insights and unrelenting dedication for his murder cases to find the “black box.” Few of his contemporaries have that kind of insight, dedication  or experience.   


It is my opinion that the “Black Box” theory is valid for construction litigation as well.  For example, I was hired by an Excavation Subcontractor who filed for Chapter 11 bankruptcy after being replaced during construction of a marina project.  There were many complications. Not only did the General Contractor have an outstanding track record, so did the Engineering firm who not only designed the project, but was also hired by the Owner to monitor progress.


The design was straight forward and the terms of the contract were clear: my client, the Excavation Subcontractor, was responsible for site dewatering as well as the excavation. There appeared to be no ambiguity as to risk.  In addition, the documents comprising the soils report made it very clear that my client took full responsibility for any undefined site condition. The biding documents called for visiting the side and performing all necessary “due diligence” including making test pits to confirm accuracy of the soils conditions.


When progress on the project was delayed beyond any hope of recovery, my client’s bonding company was called, and notice of cure issued. Despite the extra equipment, expensive pumping, and working overtime, there was no chance of improving progress in time to make the scheduled opening of the marina. The bonding company’s expert confirmed what the Owner, General Contractor and Engineer had already decided, namely that my client, the Excavation Subcontractor,  failed to perform in accordance with the terms of the contract. Termination for cause proceeded.


I was hired when the contract was already 4 million in the hole, and my client had just filed for bankruptcy. He had been a successful Excavation Contractor for over 20 years. His business included work in other states, which was now impacted.


For this case, the amount of paperwork, including charges and countercharges was overwhelming.  The more I looked, the worse the evidence became that indicated my client made serious mistakes in both his performance, and in bidding this project.  There seemed no way out. Nevertheless, something just “smelled” fishy, and I could not put my finger on it immediately. Where was the “Black Box?”


One clue came from another Excavation Subcontractor I contacted who refused to bid this project, stating that he was familiar with the soils conditions in the area, and decided to pass.  Another came from an Architect I contacted on the site next door. He was terminated because he insisted on spending more money to go deeper on borings which the Engineer felt was unnecessary.


I reread the four addendums issued to the original soils report.  It was one of the most restrictive self-serving technical reports I have ever witnessed.  All this led me to the conclusion that something was terribly wrong.  Based on my experience and insight, I contacted my associate, a Professor at the University of Michigan, a national expert in geotechnical engineering who I worked with on other cases, and requested his opinion.


The answer became apparent within a very short period of time. The fourth and last Addendum to the soils report was issued just one day before bids were due. It contained one boring just off the immediate excavation area…different from all others. This boring went deeper, and identified a gravel layer below the impervious clays of the previous borings. The Engineer should have stopped the bidding and insisted that more borings be taken.



With knowledge that a gravel layer exited below the borings changes the entire means and methods of construction. How was any bidder expected to know that the flow rate of water travelling horizontally through the gravel layer identified by this one boring was one million times faster than that of anything identified in the previous borings, making the project unsafe for any excavation which would release the hydraulic pressure? That is exactly what happened, causing slope failure and soil in the excavation to become liquefied.  None of the engineers or managers on site could fully comprehend what was happening in front of their eyes. Neither could the bonding company’s engineer.  It is hard to pump out a river.   


My insight in finding the “Black Box” resulted in a successful settlement and recovery of cost. 


Post by Paul Gogulski

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By | 2013-02-15T14:54:29+00:00 February 15th, 2013|Construction Litigation, Situational Ethics, Uncategorized|0 Comments

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