Construction Lawyers

Need “boots on the ground” knowledge

Construction Lawyers

The issues with respect to which in-house counsel at a construction company are asked to provide legal advice are likely typical for any construction lawyer, such as the tendering process, contract negotiations, subcontractor defaults, and builders’ liens. In-house construction lawyers, who may often be embedded within the operations team and work closely on projects from bidding to completion, often also experience a constant and underlying expectation from their clients that they are always prepared to provide legal advice that integrates synergistically with the commercial and operational context of a particular project and of the company as a whole.

It is probably safe to assume that most construction lawyers begin their practice with limited practical knowledge about construction. Nowhere in the tomes of the traditional education leading to law is there instruction on slab-on-grade, curtain wall, shotcrete, formwork, post-tension cables, and soffits, and yet these are sometimes literally the building blocks of the legal issues on which clients seek advice. Therefore, in order to effectively provide advice to clients in the construction industry, it behooves construction lawyers to acquire as much “boots on the ground” knowledge as possible about the operational and commercial aspects of construction. The following may help in working toward that goal:

  • Seek out mentors and friends from the operations side of construction, such as project managers and superintendents, and call them when you have questions. This may prove invaluable when, for example, you are uncertain about the operational ramifications of an obligation in a contract that you are reviewing or negotiating. Leaning on those contacts to fully understand what that obligation would entail in practice will likely assist you to provide practical advice and to negotiate sensibly.
  • Attend as many operations meetings, such as those held with the trades, as possible. Not only will you learn about construction, but you will also learn about the operational realities faced by your clients, such as those related to scheduling, which will give you important context to consider when providing advice.
  • Take every opportunity to discuss issues with your company’s executives and to observe them making operational decisions. This is particularly important for large companies with multiple ongoing projects across multiple branches. We are often asked to provide advice for a particular project, but the client is ultimately the company as a whole. Observing the decision-making process at the top will inform you of the direction and values that are intended for the entire company and will therefore empower you to provide advice that is valuable to the company as a whole.
  • Visit project sites as often as you can. You will likely experience memorable “aha!” moments. Until you actually see construction in action, many of the common sources of disputes, such as delays and change orders, will likely remain abstract legal concepts. However, once you see concrete being poured, rebar being installed, or a curtain wall going up, the issues become much more tangible and you will be equipped to engage with them in a manner that allows you to advise solutions that make sense from both a practical and legal perspective.

A laudable goal espoused by many lawyers regardless of the industry in which they practice is to achieve the status of the trusted advisor with a seat at the decision-making table. In construction, and perhaps particularly as in-house counsel, engaging in the types of professional development listed here will likely form an effective component toward achieving that goal.

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