Just When I Thought the Debate Had Died Down. . .

300px-SupremeCourtofVirginiaBuilding1This morning as I sat dealing with both the preparation for a two day arbitration and a minor case of writer’s block, I saw a great note from my friend Brett Marston at the Virginia Construction Law Update that again piqued my interest.  Brett pointed out a great viewpoint article in ENR Magazine written in response 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 Musings).

The main point found in the recent ENR Viewpoint, written by construction attorney Andrew Ness, was that the assistance of an experienced construction lawyer early in the process can and should lead to both fewer conflicts and, in the unfortunate event of a conflict, the faster and more efficient resolution of these disputes.  Unfortunately, as in any profession (from architects and engineers to contractors), not all construction attorneys are created equal and the “assistance” of inexperienced counsel (in the sense that such counsel may not be steeped in construction much as I am not in tax law) can at times cause the types of headaches all clients encounter on occasion.

As those of you that read this construction law blog know, I am a big fan of ADR, and in particular mediation as a means of dispute resolution.  I am also a huge proponent of early access to a lawyer that knows a construction contract can assure that expectations among the parties are aligned up front.  I recommend that you read both Viewpoints and the comments to them.

While I could try and sum up my thoughts on this subject here, I think that Mr. Ness says is best when he states:

By training and experience, a good construction lawyer brings unique skills to a construction project that can meaningfully contribute to project success.  And that is precisely what most of us find most rewarding about our job, just like other professionals in the construction industry.

What are your thoughts?

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

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5 Responses to Just When I Thought the Debate Had Died Down. . .
  1. Howard I. Littman, AIA
    June 24, 2013 | 5:35 PM

    Chris, enjoying your thoughtful posts and questions, as always. I could not agree more that anyone in the design-construction industry should work only with knowledgeable specialty counsel. Sage counsel always proves to be a good investment should any dispute arise (as well as a risk-preventive). I would add something that might digress a bit – but is nevertheless an important consideration if/when one is embroiled in a dispute despite up-front assistance of a construction-savvy attorney.

    You mention mediation. Just as parties should have counsel that is ‘state of the art’ it is equally critical that the selected mediator be well-versed (specializes heavily in construction issues).

    Construction disputes that reach mediation are usually complex (a broad palette of allegations and moving parts) and involve large numbers of players. Each principal will have his/her own ‘perspective’, an attorney with a ‘take’ that might vary to some extent, likely a carrier with another set of goals, and one or more experts that (in too many instances) are not truly objective. That makes it hard for the parties to accurately assess their risks of success or failure should mediation not result in a settlement.

    The mediator must not only understand law/contracts/insurance/psychology, but must be able to use well-developed knowledge of construction to truly digest the dozens of different versions (the Rashomon effect). A mediator that has ‘nuts and bolts’ knowledge is essential to cutting through the ____, and making each party view the larger picture through the eyes of potential jurors (predictably different than how the parties themselves see their case).

    The savvy attorney(s) and savvy mediator working together are sometimes the only real salvation for emotionally-motivated parties unable to see construction disputes from the business standpoint.

  2. Scott Wolfe
    Twitter:
    June 25, 2013 | 11:58 AM

    Funny that you publish this – I had just finished reading the same article. Also, I just finished commenting there. I’ll repeat myself a bit in this comment.

    Given my background, it should be clear that I understand the value of quality legal counsel. Further, I understand it is impossible to make a sweeping statement about lawyers that applies to every lawyer and every situation. Nevertheless, I believe in trends, and I believe in broad themes as a definer of situations.

    With that said, my comment on the ENR article is that lawyers are out of touch. They are simply out of touch.

    It is why the only people defending the lawyers in the ENR inspired exchange are…the lawyers :).

    Lawyers should look at this and see who is supporting their position. The people they are claiming to serve are not buying it. That should be a wake up call.
    Scott Wolfe recently posted..The Bottom Line On Preliminary NoticesMy Profile

  3. Christopher G. Hill
    Twitter:
    June 25, 2013 | 12:08 PM

    Scott- As always, I appreciate your insights. My issue is not so much with the premise that some lawyers are out of touch with the “customer service” and team mate aspect of counseling their clients, it is more with the rush to lump all construction counsel into one big cabal seeking to line their pockets at the expense of their clients.

    I just hate to see a few kill off the reputation of those of us (yourself included) that seek to assist and streamline the process as opposed to prolonging it.
    Christopher G. Hill recently posted..The Construction Lawyer as MediatorMy Profile

  4. [...] And then, just this morning, Chris Hill wrote about the topic again in “Just When I Thought the Debate Had Died Down…” [...]

  5. […] Just about every construction subcontract that I review for those clients that take my advice to talk to me early in the process contains a clause that essentially states some version of the […]

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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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