Should Construction Lawyers Wish for Litigation?

While we share a last name, to our knowledge Chris and I are not related. (In my case the name Hill is a result of assimilation.) But Chris and I do share a number of things in common – blogging on construction topics, remaining cautiously optimistic about green building risks, years of accumulated time reviewing the fine print of construction contracts, and a real passion for assisting contractors faced with legal risks. In addition, we both tend to view litigation as a last resort when dealing with conflict. Below is Chris’ post that comes, in part, as a response to some email exchanges about the current state of construction law, and a discussion about East Coast vs. West Coast trends. I want to frame this post and hang it on my wall. Thanks, Chris! [Ed.]

First of all, thanks again to Brian for the opportunity to post here. I can’t say enough how great his support, as well as he guest posts at Construction Law Musings, have been over the years.

When corresponding about the potential topic of this post, Brian told me two things that were both unsurprising and a bit disturbing. The first is that construction law firms out on the left coast were hurting for work. The second is that the lawyers at those firms were wishing and hoping for some serious, expensive and drawn out litigation.

Frankly, I’d be surprised if you didn’t hear such a comment occasionally here in Virginia or across the construction law landscape. We construction attorneys and litigators, for better or worse, make our money because of the problems on the job and the grey areas in contracts that lead to long, drawn out litigation. Needless to say, this fact of life has given rise to a negative attitude toward an attorney’s role in the construction world.

Despite these attitudes, both within and without the legal profession, I firmly believe that construction lawyers can be a great asset to their clients. By bringing in a construction attorney early on (much as you would an accountant or a bonding agent) so that the lawyer can get to know your construction business and can be a partner in avoiding the contractual pitfalls and business issues that then lead to litigation a construction company can save headaches and, importantly, money in the long run. Contractors are a group of people that know that it is always more expensive to fix a problem than get it right the first time. A good construction lawyer can apply this principle to a client’s business and contracts.

Additionally, when the inevitable problems arise (Murphy was an optimist after all), a responsible, experienced and knowledgeable construction lawyer can and should help to smooth the waters and negotiate a solution to the problem short of litigation. Litigation is expensive. If your company needs to sue to get paid, you’ve quite honestly, already lost money on the project. Business owners (except for maybe tobacco companies) cannot run their companies and make financial decisions planning to be in litigation. Is litigation occasionally necessary? Yep. Should it be a last resort? Of course.

As an individual who acts as both a lawyer taking a position for a client and as a construction mediator, I have seen how in many instances the money is a big factor, but not the only factor (and maybe not even the biggest factor), in resolving a construction related dispute. With the proper counseling (remember we lawyers are attorneys and counselors at law), a dispute that originally looks to be all about money can be resolved more efficiently and, importantly, less expensively through negotiation. Not only do you save the attorney fees, you also save on lost opportunity costs, anxiety and worry that time spent in litigation inevitably causes.

The advantages for both the attorney and construction company?

  1. The client doesn’t have to “bet the company” on a major litigation effort and put its fate in the hands of a judge or arbitrator.
  2. The client stays in business and is likely to be less annoyed with the process and its counsel than it would be after a judge decided its fate. This means steadier (if not as “lucrative” on a per matter basis) business for the attorney.
  3. Both sides of the dispute get to air their grievances in a way that the rules of court wouldn’t allow.
  4. Maybe, just maybe, the client will speak well of you to others.

Color me biased toward mediation/negotiated solutions, but I truly believe that construction attorneys should be wishing for repeat customers. We should be telling our clients to mediate instead of spending years in litigation. We should embrace our role as necessary evils and partners with our construction clients. We should encourage our clients to consult with us to avoid problems and stay out of court (knowing full well that it may be impossible in certain situations).

If we as construction counsel treat our clients as partners instead of hoping they charge headlong into the battlefield of the courtroom we just might change a few minds.

About the Author

Christopher G. Hill, LEED AP is Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris has been nominated and elected by his peers to Virginia’s Legal Elite in the Construction Law category on multiple occasions (2007-2012) and is a member of the Virginia Super Lawyers “Rising Stars” for 2011 and 2012. He specializes in mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. Additionally, Chris is active in the Associated General Contractors of Virginia including membership on the AGC-VA Richmond District Executive Committee and the Board of Governors of Construction Law and Public Contracts Section of the Virginia State Bar.

Image courtesy JD Hancock