ENR’s recent viewpoint, “Lawyer as Constructor,” was a classic example of lawyer bashing—reliably good fun that is as old as Shakespeare. I am not going to argue that it’s never deserved but I would like to point out some of the ways that construction lawyers make a strong positive contribution to our industry.
At the front end of a project, the construction lawyer frequently adds substantial value. Almost every project has at least one key challenge that is not addressed by any form contract. For a manufacturing plant, it might be clarifying the contractor's responsibilities for installing and commissioning owner-supplied production equipment. On a hospital project, it may be the owner's need to severely limit the times when the contractor can do punch-list work to avoid interfering in the owner's intensive commissioning and activation process.
For other projects, it may be the need to work around a problem with bringing permanent power to the site or a particular permit that will not be received for several months.
Whatever the specific issue, many times I have been asked to assist on a troubled project and discovered that the parties’ contract never once talks about how that project’s key problem is going to be handled, and misunderstandings about that precise issue are at the core of the project’s problems.
Perhaps it was discussed at some early point in their dealings, but whatever oral understandings each party thought were reached may have never been reduced to writing. Current recollections about those understandings, if any ever really existed, are vastly different, leaving each side feeling betrayed and highly distrustful of the other.
Needed Prodding
An experienced construction lawyer asks the questions up front that need to be answered about how that project’s special risks are to be handled, prods as needed until some kind of workable agreement is reached and makes sure that agreement gets reflected in the signed contract. This doesn’t prevent every dispute, but it makes for a better contract that gets both parties on the same page and considerably improves the odds of a good working relationship and a successful project.
Do construction lawyers provoke or cause construction delays, as the recent viewpoint charged? In almost 35 years of practice, I have never seen or heard of it happening. Construction lawyers know and appreciate as much as anyone else that everyone, including our client, is only hurt by delayed completion. Very rarely is a construction lawyer involved in project execution until the project is plainly in substantial trouble, which the parties have gotten themselves into without any assistance from lawyers. Our most frequent job as lawyers is simply to do our best to keep our client from being the one that bears most of the pain from what is unavoidably a bad project where nobody is going to walk away happy.
In dispute resolution, you may be surprised to learn that the quickest, most efficient settlements happen when both parties to a contract dispute have skilled construction counsel. They don’t need to waste time and money getting up to speed, appreciate that playing legal games won’t work and will just run up litigation costs, and can efficiently and accurately evaluate their client’s potential risks and rewards.
Experts at both dispute resolution methods and evaluating the likely range of outcomes based on the contract, facts and law, good construction attorneys get the dispute resolved more quickly than any other alternative. Each knows that a reasonable and prompt settlement is what best serves their client’s interests.
Playing the Heavy
It’s easy to be critical of lawyers because our job is to represent our client, and sometimes that means being the heavy, the naysayer, or the bearer of bad news. Construction clients are not immune from sometimes becoming so emotionally charged about a dispute that they are more interested in inflicting pain on the other side than in being economically rational.
A good construction lawyer, immersed in the industry for the long haul, appreciates that prompt and cost-effective dispute resolution is what builds reputations and keeps clients coming back for years. Often this means that behind the scenes they are working to help clients get past their emotional reactions and instead focus on practical solutions.
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.
Andrew D. Ness is a partner at Jones Day in Washington, DC, and the current chair of the American Bar Association Forum on the Construction Industry, the world’s largest association of construction lawyers. The views expressed are his own. He can be reached at adness@jonesday.com.
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