Murphy was an Optimist- How to Deal with this Truth on a Construction Site

Murphy's Law and ConstructionAnyone who deals with construction on a daily basis will tell you that something will go wrong on the job site.  I am constantly reminded of this fact (and also reminded that I may have a somewhat skewed perspective because I spend my time either dealing with problems, or anticipating them for my construction clients).  A large construction project simply has too many moving parts for even the most conscientious contractors to avoid (hopefully minor) glitches.

Whether the problem is a minor one or becomes a catastrophe leading to litigation hinges very much on the way in which the Owner, General Contractor, and Subcontractors on the project (not to mention the Architect, LEED AP (where necessary), and suppliers), resolve the issue.  If the problem is easily fixed and the party responsible fixes it without incident, construction lawyers don’t even hear about it, much less become necessary.  These aren’t the issues that I am considering for this post, though I recommend daily that the parties deal with issues as best they can without legal action.  For more on this last, check out my friend Vickie Pynchon’s (@vickiepynchon on Twitter)  guest post on how to get sued.

On to the more interesting (at least to a lawyer) disputes arising from construction projects.  These disputes generally arise in a few areas, almost all involving the scope of work and/or money.  One example  is change orders.  These generally arise when a subcontractor is ordered to perform work without a written change order that specifies the scope of the change and the additional compensation to be paid.  These also occur because, in the heat of a time crunched project, a contractor and subcontractor are trying to meet deadlines for a demanding owner.  I discussed some of the practical ways to run the job smoothly in past posts, so I won’t belabor the point here.

From a legal and risk management  perspective, your contract is king and good dispute resolution procedures, from the informal claims process, through formal dispute resolution through arbitration or litigation, will go a long way toward getting issues resolved early and efficiently.  Having the steps for the resolution of claims laid out in the contract ahead of time both sets the expectations for the parties to the construction contract and warns them of what will happen should they fail to resolve the issues amicably (or at least without the involvement of the legal process).

While I am not a big fan of mandatory arbitration (or mandatory mediation for that matter), I do recommend that the contract lay out where and how a dispute will be resolved should it escalate to the point where a formal third party decision is needed.  One way to do this is to give the parties (or at least one party) the choice of how the issue will be resolved.  Another (with a hat tip to Ron White (@mediatoronwhite on Twitter)) is to carefully draft the actual steps to be followed.  Virginia courts will enforce the letter of a contract, even to the point of allowing the parties to create the procedure for third party dispute resolution.  The parties can agree to arbitration without lawyers or the amount of discovery allowed.  They can decide that mediation is mandatory prior to any trial or arbitration.  Construction attorneys can and should be creative in helping their construction clients draft such clauses to the advantage of all involved.

In short, “Murphy was an optimist so plan for the worst and hope for the best” is a credo I live by as a construction attorney.  By making your contract documents clear (from scope of work to change orders to dispute resolution), construction projects will run more smoothly and disputes won’t cause as much of a financial drain on construction professionals.

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

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25 Responses to Murphy was an Optimist- How to Deal with this Truth on a Construction Site
  1. Timothy R. Hughes
    Twitter:
    April 19, 2010 | 10:49 AM

    I am struck constantly that the complexity of construction projects seems like a breeding ground for misunderstandings and differences. It is a real testament that more cases do not end up in litigation despite the challenges.
    .-= Timothy R. Hughes´s last blog post ..Deed in Lieu Transactions: The Basics =-.

  2. Christopher G. Hill
    Twitter:
    April 19, 2010 | 10:51 AM

    As am I Tim. This is part of why I like representing contractors. Most of them will make business decisions when faced with an issue.

  3. vaconstruction (Timothy R. Hughes)
    April 19, 2010 | 10:51 AM

    Twitter Comment


    Murphy was an Optimist- How to Deal with this Truth on a Construction Site | [link to post] via @constructionlaw

    Posted using Chat Catcher

  4. Ron White
    April 19, 2010 | 11:53 AM

    Well done Chris. I married a Murphy nealy 30 years ago, so Murphy’s law is one of my favorites. Through this post (and many others you have written)I hope your readers will view construction contracts as more than risk shifting vehicles; they can reflect the best intentions of the parties to build a great project and if someting goes wrong, resolve differences in a highly efficient way. Too often contracts are used as blunt instruments to pound the opponent into submission instead of precise tools to correct a problem.
    .-= Ron White´s last blog post ..Resolve Construction Disputes More Efficiently With Customized ADR Provisions =-.

  5. scottwolfejr (Scott Wolfe Jr)
    April 19, 2010 | 12:03 PM

    Twitter Comment


    RT @vaconstruction: Murphy was an Optimist- How to Deal with this Truth on a Construction Site | [link to post] via @constructionlaw

    Posted using Chat Catcher

  6. Doug Reiser
    Twitter:
    April 19, 2010 | 12:03 PM

    Great discussion of the inevitable problems inherent in every project. Thanks for the link to my guest post here at Musings!

  7. Christopher G. Hill
    Twitter:
    April 19, 2010 | 1:15 PM

    @Ron- Thanks for chiming in. I agree, the base from which disputes are resolved is the contract and the contract should be treated as such.

    @Doug- Glad to link and am thrilled that you took the time to post.
    .-= Christopher G. Hill´s last blog post ..Construction Law Musings on AEC iPhone App =-.

  8. Don Santos
    April 19, 2010 | 11:31 PM

    Hi Guys: I came up on the contractor side as a super and PM for 15 years before moving to construction scheduling. I could not agree with you more.

  9. Christopher G. Hill
    Twitter:
    April 20, 2010 | 8:35 AM

    Thanks for chiming in Don. The contract is key and sometimes overlooked in the world of form contracts.
    .-= Christopher G. Hill´s last blog post ..Urban Retrofits, Tall Buildings, and Sustainability =-.

  10. CAGCSubs (CAGC Subcontractors)
    April 20, 2010 | 2:02 PM

    Twitter Comment


    Murphy’s Law and Construction? You Bet
    [link to post]

    Posted using Chat Catcher

  11. [...] sursa foto October 8th, 2010   Tags: lege, Murphy [...]

  12. [...] Murphy’s Law on the Construction Site Anyone who deals with construction on a daily basis will tell you that something will go wrong on the jobsite, writes Christopher G. Hill. One way to prepare for the worst is to make your contract documents clear. This will help construction projects will run more smoothly, and disputes won’t cause as much of a financial drain on construction professionals, says Hill at Construction Law Musings. [...]

  13. [...] job with too small a margin than being awarded the work and losing your shirt.  Remember. . . Murphy was an optimist and something will go wrong (how big that something is depends on you).  Outside of the obvious [...]

  14. [...] what is ahead allows construction professionals to deal with all of the inevitable problems that will arise on the job.  For this reason, spending some of that hard earned money on legal advice up front will cause [...]

  15. Contractors Need to be Teachers Too
    November 14, 2011 | 4:36 PM

    [...] Even in commercial construction where the owners are supposedly more sophisticated and aware of the construction process, expectation setting is key.  As the construction professional, you must have your contract and scope of work drafted in a manner that leaves as little doubt as possible as to what is and (importantly) what is not included in the contract.  A well drafted contract is the first step in the necessary education and expectation setting process.  Your local construction attorney can assist you with making sure that your contract includes what it needs to in order to protect you from disputes that may arise from the inevitable and hopefully minor glitches that will occur on a construction project. [...]

  16. [...] Even in commercial construction where the owners are supposedly more sophisticated and aware of the construction process, expectation setting is key.  As the construction professional, you must have your contract and scope of work drafted in a manner that leaves as little doubt as possible as to what is and (importantly) what is not included in the contract.  A well drafted contract is the first step in the necessary education and expectation setting process.  Your local construction attorney can assist you with making sure that your contract includes what it needs to in order to protect you from disputes that may arise from the inevitable and hopefully minor glitches that will occur on a construction project. [...]

  17. [...] run construction project.  However, even with the best construction contract there are claims (Murphy was an optimist after [...]

  18. [...] prepared Virginia construction companies can end up getting a citation because of the fact that Murphy was an optimist.  No matter how well prepared, trained and rule compliant management and the company in general [...]

  19. [...] The recent cruise ship fiasco, in which thousands were stranded at sea for an entire week with no running water or toilet facilities, visibly brought to mind the old axiom to “Be Prepared.”  As Chris likes to say, Murphy was an optimist. [...]

  20. […] Construction category.  I was able to assist my clients to grow their businesses and try to buck Murphy’s Law on the job site.  I also was part of the group that helped to kill (yet again) a crazy attempted […]

  21. […] As anyone that regularly reads Construction Law Musings knows, I am a Virginia Supreme Court certified mediator and an advocate of mediation as a great way to resolve construction disputes in an efficient manner.  While much of my practice is representing construction industry professionals during the dispute resolution process (whether through litigation, arbitration or otherwise), I try and keep my focus on risk management and the efficient resolution of the payment and performance issues that are almost inevitable in the Murphy’s Law controlled world of construction. […]

  22. […] 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 […]

  23. […] As anyone that regularly reads Construction Law Musings knows, I am a Virginia Supreme Court certified mediator and an advocate of mediation as a great way to resolve construction disputes in an efficient manner. While much of my practice is representing construction industry professionals during the dispute resolution process (whether through litigation, arbitration or otherwise), I try and keep my focus on risk management and the efficient resolution of the payment and performance issues that are almost inevitable in the Murphy’s Law controlled world of construction. […]

  24. […] when the inevitable problems arise (Murphy was an optimist after all), a responsible, experienced and knowledgeable construction lawyer can and should help […]

  25. […] work, mechanic’s lien deadlines and the like. All of these are important, particularly in the Murphy’s Law riddled world of construction where the contract will determine your rights in the face of a dispute or other […]

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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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