BY: JEFFREY C. BRIGHT, ESQ., SAXTON & STUMP LAWYERS AND CONSULTANTS

It is true that attorneys don’t physically build anything. And we don’t dig, paint, or install any materials (although I did put in a slightly uneven
BBQ patio this summer). Still, we are a career in the construction industry. My goal is the same as any other player on the project — whether it be an engineer, architect, estimator, or project manager — I seek to help the project move smoothly and without conflict. The most satisfying part of my career is when I’m able to help a construction company move forward with their projects and business decisions. Sometimes that involves guiding the company through disputes and litigation, but more often than not, the focus of my job is problem-solving and identifying and addressing risk.

Earlier in my career, I came to the realization that construction companies are primarily focused on their construction projects and running their business. It’s a simple thought, but not one always recognized by those in my profession. Recognizing that legal advice is a small (but important) part of the construction process — identifying and allocating project risk, clarifying terms of agreement, and, if necessary, enforcing and defending a client’s rights on the project — has created lasting partnerships with my construction clients. With that in mind, I reveal a few lesser-known things about construction lawyers:

We want your contract negotiations to succeed.
No construction company ever says: “I love my lawyers because they kill deals with a sea of red ink.” Construction lawyers want you to succeed on the project, and most lawyers focus their redlines and negotiations on points that either need clarity, tweaks to the risk allocation that conform to industry standards, or perhaps some horse trading to make the deal more agreeable for everyone.

At the same time, we take the job of protecting your interests and your company seriously. Sometimes a job has too much risk or uncertainty for the price point, and that must be flagged and considered. Although uncommon, there have been projects that my clients walked away from (and for good reason). Sometimes, the bad pitches you don’t swing at are the most important ones for your bottom line. Walking away from a bad project is a contract negotiation “win.”

We don’t love change orders, claims, or preservation of rights letters.
Sometimes I feel like I should have been a therapist when I ask: “Well, have you told them about how you feel?” Frequently, lawyers, including myself, recommend sending written letters to preserve claims, propose change orders, or notify of cost/delay events. Stating the obvious: lawyers did not cause the flood event, change order, trade stack, omitted design detail, or whatever else is holding up your project. But if a client is suffering on a job because of an adverse event, a construction lawyer will try to articulate and give voice to the issue so that it can be appropriately identified, addressed, and resolved. The change order and claims process need not be a personal, accusatory event. Often it is simply putting voice and language to what the parties already know – a problem exists, and per the contract (or law) that risk is allocated accordingly.

The law is more of an art than a science.
Legal issues that arise on a project are often complex (otherwise, a lawyer would not be necessary). Rarely are any two projects exactly alike, and rarely will the circumstances be identical. Contract interpretation and legal advice depend on the circumstances. Similar to construction projects, which cannot have a one-size-fits-all approach, legal advice is often dynamic, too. Depending on the project size, location, schedule, and delivery method, different contract terms may take on greater priority in negotiations. Similarly, in litigation, each case tends to have unique factors for why the job went sour. That is why a trusted construction lawyer, who can apply a variety of problem-solving approaches and litigation tactics from a wide breadth of construction law experience and background knowledge on how your company prefers to approach issues, is generally preferable to off-the-rack non-tailored advice.

The author, attorney Jeffrey C. Bright, regularly presents at ABC Keystone’s educational seminars. Jeff focuses his practice on the construction industry, advising on general construction matters, project disputes and litigation, employment law, and real estate development and disputes. He represents contractors, subcontractors, owners, construction managers, and design professionals on the preparation, revision, negotiation, and litigation of construction contracts.

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Posted October 21, 2020