I write this webpage extremely carefully, due to the nature of the topic. The necessity for a contractor, or a construction manager to involve the legal profession, has grown tremendously over the last 30 years. Any of you younger readers will laugh, and the older ones will simply offer an understanding nod, when I say that, there was a time when there was no specific construction lawyers. This is not to say that the legal profession did not become involved with contractors, material suppliers, architects or engineers. There were legal hang ups and lawsuits that were construction oriented, however, the need for the specific construction lawyer, that was educated and experienced in the specific details of construction and all of its problems, did not exist. The typical small claims, hometown lawyer would assist a local contractor if there was a legal question or issue. In almost all cases, these legal concerns and difficulties were settled out of court, and the need for specifically educated and experienced construction lawyers, researchers and clerical individuals had not been created. Computerization and sophistication, had not blanketed the construction and building industry with legal red tape and confusion. It was a much simpler world, and the need to specifically train a construction lawyer to represent a construction company was nonexistent.
As time moved forward, and the hand shake deal became a thing of the past, the need for lawyers that were focused, educated and experienced in construction law, grew. I would surmise that due to added degrees of complexity, as well as the larger financial commitments that construction projects had morphed into, the need for more specific and formal legal assistance was required. It is my opinion that the construction industry also evolved into a much more sophisticated, educated and formal commodity, that involved highly educated individuals who understood the importance of proper professional legal support and guidance.
The construction and building industry has grown and has now created an entire marketplace of professional construction lawyers, schedulers, change order experts, researchers and clerks. I know of several professional construction lawyers, that evolved from their own construction practice, and became involved and interested in the construction law aspect of the industry. The construction law industry has developed into a large and successful division within many of the largest legal organizations in the nation. Even the local City or Town has one, two or even three trusted construction lawyers that continually battle legal justice, in the construction industry, for their clients.
So what are some suggestions, concepts, thoughts, as well as rules of thumb, that we can provide for the average construction company, to assist in their quest for perfect legal representation?
1.) The first acknowledgement that every contractor must accept, is the fact that everyone in the firm will not have the same opinion of whichever lawyer is selected to represent your firm. Lawyers like all other service oriented professionals, all have personalities that fit with some contractors and do not fit with others. To succeed as a successful contractor, normally requires a substantially confident personality, to succeed as a successful construction lawyer, normally takes many of the same personality qualifications. Therefore, there will be clashes within the construction company with whatever construction lawyer is selected.
2.) In many small towns or cities, there are not an over abundance of construction lawyers. Discussions and research with other contractors, subcontractors, material suppliers, etc. will provide some insight into the particular skills of your field of construction lawyers. It is many times extremely valuable, to discuss the qualifications of the legal professional with a peer group of contractors. It requires intimate knowledge of the construction and building industry to properly and accurately evaluate the qualifications, as well as the personalities of lawyers within the construction industry. You must know the industry, to evaluate the competence of an individual in the industry, therefore, go and communicate with your peer group, in an effort to find out the general opinion of the legal firms that are available.
3.) Research and communicate with others, in an attempt to find out the various supportive positions at each of the law firms. By understanding each supportive position within each law firm, is an excellent method of properly selecting a firm that will provide the best service for your contracting firm. Many times, a law firm will hire an individual who has been a contractor, or is extremely knowledgeable in your specific aspect of the construction industry. If you are a roofing contractor, and you can find a legal firm that employs an ex roofer, then maybe this provides a reason for selecting that law firm as your legal representative? Your legal representation will only be as good as their knowledge of your specific construction discipline. If you are a mechanical subcontractor, then to find legal representation that has as a foundation a former electrician, will obviously benefit your company. Try to customize the selection of the firm to your specific needs.
4.) While being sensitive to the privacy of individuals, attempt to discuss and research various construction legal issues that your contacts have been involved with. By trying to decipher these various legal issues, you might be more capable of identifying a specific law firm, that will focus more accurately on your typical legal issues. If you constantly become involved with non- payment issues, then there are specific legal firms that are better at payment issues, than others. If the issuance of change orders is an issue, then there are legal firms that focus on change orders.
5.) Understand your needs. As noted in No. 4 your specific needs should be the focus of your legal search. The inability to get paid on time, the inability to issue proper change orders, the formatting of your internal subcontracts, purchase orders, requests for information or whatever legal issues you are being confronted with, should be the focus of your search. This identification of need is mandatory to fully understand the type of legal construction law firm that you will most benefit from.
6.) The specific types of construction projects, that are commonly in your portfolio, will also provide a focus on your proper legal representation. For example, if you are always performing in the public sector, then legal representation that originated in the State or Federal Government, construction agencies, for housing or public works, would be a proper choice. Government specifics are an important aspect of properly selecting a lawyer, if you are always involved with things like certified payrolls, Davis Bacon issues, union verses non union issues, etc. Try to focus your search on your needs. Although this seems to be common sense, the focus of linking issues with solutions, will help you sort out the different aspects of the legal profession.
7.) Value for the dollar. It is important to decipher the return on investment, when it comes to legal representation. In many cases, the bigger the firm, the more expertise, but the more expensive. The perfect scenario for a small contractor, is finding a small, yet focused construction lawyer that is also an ex- contractor, who has performed identical work. I understand this is a long shot, but if that is possible, then you have the perfect fit. However, if you are a large firm, or exceptionally convinced that you have a 100% chance of winning the lawsuit, assuming you are hiring your lawyer for that purpose, then you should go for the largest, most powerful legal representation that you can find. The cost of the legal representation will be absorbed by the win, so if this is the case, the bigger the better. However, if you are not in that type of position, the search for the lone wolf, that is experienced in your construction discipline is probably the best alternative.
8.) In many cases within the construction profession, the ability to simply keep the balls in the air are all you can do. The legalities of several claims, bond issues, change order non- payment issues, scheduling problems, contractual discrepancies, can all mount up to a very large and confusing mound of legal issues. In some cases, the ability of your lawyer to simply, keep all of the legal balls in the air, is all that can be asked of the legal representative of your firm. If this is the case, then this type of lawyer should be researched and sought out. They are available, and can keep a variety of legal issues well off the ground, for an indeterminate length of time.
9.) The final thought that we can provide, is the suggestion that you pick a legal representative that will be easy to communicate with, and can be contacted in a short time. As you continue in the construction industry, you will encounter difficult legal issues, that you will want legal guidance and direction. It is important that the legal firm you chose, is capable and large enough to provide almost immediate communication and guidance. This is important, and the cell phone number of your attorney, should always be in your back pocket.
In today’s construction and building industry the need for a competent and focused legal representative is almost mandatory. The simple copying of your attorney on a piece of correspondence, is in many instances, enough notification to an opposing view, to convince that party not to continue the conflict. Once your construction company has achieved the reputation for having a competent legal representation, the conflicts will in many cases, automatically diminish. The construction company that is represented by a strong and focused legal team, is like the country with the most competent military.
Hopefully they will not be needed, yet they are in the background as a defense against accusations, legal conflicts, lawsuits and other legal issues.