Construction Lawyers Can Be Part of the Solution

Originally posted 2013-05-06 09:00:33.

Shasta Dam under construction, California

Shasta Dam under construction, California (Photo credit: Wikipedia)

Much discussion has hit the web recently regarding the role that construction lawyers have had relating to the construction industry.  Unfortunately, most of this discussion has focused on the negative aspects of lawyer involvement in construction contracting.

A recent Viewpoint article in ENR magazine opines that much of the delay, expense and other issues plaguing complex construction projects are attorney related, if not caused.

That article concludes with the following:

As if there weren’t sufficient risks already inherent in the business of bending nature to our will, we have added a new, highly potent risk: The risk that the other party to our contract has better lawyers than we do. Is the American construction industry better off for that? I think not.

In doing so, the author, a PE, throws us attorneys under the bus for creating a toxic environment in which attorneys (not those on the ground managing the projects, contracts and payment streams) cause the delays, undocumented changes, economic issues with subcontractors, and the other myriad issues that at times plague the Murphy’s Law ruled world of the large commercial construction project.

My friend, fellow construction lawyer, and co-presenter at the first Green Matters conference, voices another negative, though slightly more measured, discussion of an attorney’s role in a construction project.  In his post at the Lien Blog entitled Are There Too Many Lawyers in Construction?, Scott (@scottwolfejr) takes a different angle.  He discusses the fact that construction law has been around for a long, long time and that it has become more and more complex.  This complexity leads to more attorney involvement, and likely more complexity.  His opinion on this point is summed up as follows:

Modern construction law will not sentence contractors to death. However. . .  it may metaphorically kill the contractor or the contractor’s business with the weight of its complexity and fairness.

Scott then goes on to state some ways by which the little guy can level the playing field against the larger and better funded (read lawyered up) companies.

I recommend both of these pieces for your reading.

As someone that represents numerous smaller construction companies here in Virginia, I feel the pain of those on the ground and those with payment issues when they are faced with the daunting task of collecting money to which they are rightly due.  However, I believe that the early involvement of good construction counsel can stave off many of the issues that arise simply through the better drafting of contracts and proper conduct of business.  In many instances, the failure to consult a construction lawyer (as opposed to the involvement of one) causes more issues than involvement of a lawyer would have.  Furthermore, attorneys can assist in the early resolution of construction related disputes without the need for trial.

While there may or may not be too many attorneys entering the practice of law on a yearly basis to sustain the legal profession properly, this general topic is one for other blogs and outside the scope of this construction law blog.  That said, most of the construction attorneys that I know truly seek to assist their clients to make money and run profitable enterprises.  In short, and despite the all too common view of the non-lawyers in the industry, consulting with an experienced construction attorney before a problem occurs is a great way to avoid all of the problems that the above referenced opinion pieces discuss.

What do you think?  Please let me know by comment.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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14 Responses to Construction Lawyers Can Be Part of the Solution
  1. Tim Vellrath
    May 8, 2013 | 10:56 AM

    Sorry to disagree. Let’s see I’m 65 now and have been in construction since High School, class of 65. I am trying to think of one time that construction lawyers were helpful to a situation. Nope can’t think of any.

  2. Christopher G. Hill
    May 8, 2013 | 11:06 AM

    Thanks for your perspective, Tim. While we disagree, I understand how it could be frustrating to be put in the position of having to call a construction attorney. I still believe that early involvement (contract drafting, etc.) can and does help head off many of the issues that result in litigation and expense.
    Christopher G. Hill recently posted..Quick Primer on Virginia Mechanic’s Lien LawMy Profile

  3. [...] in last week’s Musings, I have been thinking about how I as a Virginia construction attorney can be part of the solution.  Then, fortuitously, my good friend and ubermediator, Victoria Pynchon (@vickiepynchon), dusted [...]

  4. [...] I have spent a couple of posts here at Construction Law Musings to discuss the benefits of hiring a construction attorney early in the project, and even later in the event that a dispute arises.  Without rehashing those discussions (I [...]

  5. [...] to a prior attack on a lawyers role in construction published in an earlier issue (and to which I responded previously here at Construction Law [...]

  6. [...] flurry of conversation, including a piece from my friend Chris Hill who suggested on his blog that Construction Lawyers Can Be Part of the Solution.  Another lawyer chimed in with another ENR Viewpoints article to defend lawyers, writing [...]

  7. […] best way to make sure you are as protected as possible is through a well drafted contract and the early consultation with a lawyer about your legal rights.  If after doing all that you can on the front end, you end up with a […]

  8. […] us necessary evils, but a good construction lawyer can and should help a construction professional obtain a well drafted contract or well negotiated (as opposed to litigated) resolution to a dispute. By properly counseling our […]

  9. […] best way to make sure you are as protected as possible is through a well drafted contract and the early consultation with a lawyer about your legal rights. If after doing all that you can on the front end, you end up with a claim, […]

  10. […] to mechanic’s liens, contracts and payment bonds.  The year contained a great debate on the value of a construction attorney and whether lawyers are more of a problem than a solution.  Throw in some wonderful Guest Post […]

  11. […] both within and without the legal profession, I firmly believe that construction lawyers can be a great asset to their clients. By bringing in a construction attorney early on (much as you would an accountant or a bonding […]

  12. […] I also think that when working in partnership with my clients, I as a construction attorney can actually be a help rather than a hindrance.  Frankly, while I can and do litigate on a regular basis, I would much rather help contractors […]

  13. […] of disputes.  This discussion comes in many forms from avoidance of such litigation through the early intervention of good counsel prior to getting into a project to what sort of resolution mechanism to use. Another branch of this […]

  14. […] be aware of that fact and be able to advise you from the earliest possible time.  Hopefully, that lawyer has been advising you all along, but if they haven’t then you still have a ready made resource and a contact with someone […]

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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