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Viewpoint: Lawyer as Constructor

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A long time ago, when I was a young project manager, I had the temerity to complain that accountants were trying to run my job. As a professional engineer, I believed my technical education and abilities counted for more than theirs should on the construction site.

However, I was confident that I knew how best to manage my own project and, therefore, had the confidence to proceed accordingly.

WELLS
But things change, sometimes for the better and sometimes not. Now, with the American construction industry being run by lawyers, today's project managers—and everyone else managing the construction process—must be looking over their shoulder constantly to be sure their day-to-day actions and decisions pass legal muster.

Construction of the Pentagon started on Sept. 11, 1941, and ended on January 15, 1943. The two months it took for site selection, preliminary design and federal appropriations brought the total project time to 18 months.

Construction of the 2.3-million-sq-ft office building known as Four World Trade Center—the first post-9/11 building to top out on the original World Trade Center site—is now slated to open this fall, some 144 months after 9/11.

At that production rate—16,000 sq ft per month—the 6.6-million- sq-ft Pentagon would have finished 30 years after World War II ended!

Imagine what today's attorneys would have advised the roofing subcontractor to do when he learned that his work on the roof of the fourth floor of the Pentagon had to be torn out because a fifth floor had been added to the structure.

However, the effect on the project of that theoretical delay-and-disruption claim would have paled beside the multiyear legal battle that would have ensued from President Franklin D. Roosevelt's last-minute decision to switch from the original site to the Potomac River floodplain, where the Pentagon stands today.

Those and a host of other opportunities to litigate may not have pushed the Pentagon's completion date to 1975, but they surely would have significantly delayed both the start and finish of that job.

Down a Slippery Slope

These two projects, of course, are far from comparable. The multitudes of political and jurisdictional challenges that had to be successfully navigated to bring the Four World Trade Center project to fruition would be no doubt incomprehensible to the Pentagon's master builders.

Nonetheless, comparing them—one with architects and engineers in charge, the other with attorneys calling the shots—does say something about where the American construction industry has gone in the past 75 years.

If that Pentagon roofer had a good construction lawyer in 1942, it's likely he would have been the only one who did. Had he been so inclined, he probably could have run roughshod over everyone else on his way from the construction site to the courthouse and the bank.

But it might not have been so simple the next time, because everyone else would have started looking for his or her own construction lawyer.

It's like the old "Spy vs. Spy" paradigm in Mad magazine: To prevail, one must continually raise the bar, always building upon and adding to whatever worked before, making expensive, time-consuming escalation imperative.

Role Reversal

By their reluctant embrace of that attorney-driven process over the years, architects and engineers have unwittingly transferred their traditional control of the construction process to their attorneys—so much so that, today, they dare not make a move without them.

Originally an adjunct to the construction industry, construction law has become a sophisticated, highly complex industry in its own right. The practice has grown so much that it can be characterized as the tail that wags the dog.

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.

Walter J. "Johnny" Wells Jr., P.E., is a self-styled construction management consultant with 40 years of varied national and international construction experience. You can contact Wells at his Wesley Chapel, Fla., office by calling 813-416-0357. His email address is jwells1965@gmail.com.

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