The POWER 30: Eric Nystrom

Eric Nystrom has litigated commercial cases of almost every imaginable kind, but his nationwide practice is about 75% construction. Although some may believe that the pandemic is over, he thinks we are two to four years from knowing what is normal in the industry, or parts of it at least, post-Covid.

Currently, his clients are dealing with the labor and materials shortage, which may become a bigger problem as the economy grows, Nystrom said. The coasts are busier, and he sees an increase in both labor supply and demand on the horizon. He believes that demand will be in commercial construction, including office towers and high-end condominiums. And, he added, “there is significant demand for downtown housing.” There’s also demand for warehouse construction, Nystrom said. “Take a look at Amazon.”

But Nystrom said his practice is beginning to get back to normal. “I’ve started to get back on airplanes,” he said. At the same time, many elements of litigation, notably expert depositions, are still virtual. And he also finds a distinct preference among judges for virtual court proceedings. The flexibility in scheduling is helpful and the cost savings for clients is significant, but Nystrom would rather be in the courtroom. He thinks that results in better advocacy and decision-making,

Nystrom, like some other attorneys, finds the “best value” bidding process, Minn. Stat. sec. 471.345, problematic. The law allows reasonable discretion in evaluating statutory factors in addition to low bid price. “Any time you’re thinking about reasonableness, things are not clear cut,” he said. The biggest issue for lesser-experienced bidders is finding out about opportunities,” he said.

One effect of the labor shortage is that it may be difficult to find a diverse workforce, he said. This is a common problem across industries where the pool of qualified workers is only so deep, and requires continued attention, he said.

One development that promotes diversification is the number of women moving into in-house counsel positions, Nystrom said. In any business significant enough to have in-house counsel, women have been very successful in leading to more diversification. Woman are moving in-house both because they want to and also because some find the environment more friendly than law firms, he said.