Christopher Hill (no relation to yours truly) is a longtime construction law attorney and mediator practicing out of Richmond, Virginia. His blog, Construction Law Musings, has always been one of my must-read sources of news and insight pertaining to construction law ever since he started it in late 2008. Be sure to follow @constructionlaw on Twitter for the latest updates from a true thought leader in the art and science of resolving construction disputes. Without further ado, I am proud to present Mr. Hill’s guest post on a topic that I couldn’t agree with more — the business case for why the mediation process is so critical to the A/E/C industry.
No, this is not a shameless plug to get people to vote for me, as I opted to not enter my blog in this year’s competition. With a binding arbitration fast approaching, I knew that I wouldn’t have enough time to post here regularly, so I decided to hold off. But in 2015, hopefully I’ll get my shot… [Ed.]
Each year for the past several years, Mark Buckshon holds a competition for the Best Construction Blog at his website, Construction Marketing Ideas. Over the years, many more blogs have been added to the competition, and this year there are over 40, I think – but I lost count.
While there are a lot of really good blogs in this year’s competition and many by people I respect and consider as friends, my vote goes to Chris Hill’s Construction Law Musings. In introducing the blog for the competition, Buckshon was kind enough to mention AECforensics.com:
He achieves these results through a reliable schedule, and the effective use of guest posts (on Fridays). Hill has been careful about selecting his guest post providers; they always provide relevant and original material, and enhance the blog’s value.
Also, one of his recent posts reveals the effective repurposing of materials published elsewhere, where he cited an article he had published in More From Less. Here, he discusses the importance of encouraging clients to plan ahead to avoid litigation and seek mediated rather than litigated solutions where possible.
The post that Buckshon is referring to of course, is Chris Hill’s post, Should Construction Lawyers Wish for Litigation?
You can vote for the best construction blog of 2014 at Construction Marketing Ideas until March 31st. The results will be published in April.
Source: Construction Marketing Ideas
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?
- 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.
- 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.
- Both sides of the dispute get to air their grievances in a way that the rules of court wouldn’t allow.
- 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
Christopher G. Hill is a lawyer, Virginia Supreme Court certified General District Court mediator and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC, a LEED AP. 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 and a member of the Board of Governors for the Construction Law and Public Contracts Section of the Virginia State Bar.
First of all thanks to Brian for the forum to share my “Musings” (yes it’s a plug for my blog) on Building Information Modeling (BIM) and alternative project delivery (such as integrated project delivery or IPD). I appreciate his past guest posts at my little construction law blog and truly appreciate the opportunity.
Like the movement toward sustainable or “Green” building, BIM and IPD have grown over the last few years. In many ways, the growth of these two “movements” in construction and construction design has occurred in a somewhat symbiotic fashion. For instance, many of the LEED certification points are best achieved by the use of BIM for integration of the various systems at a sustainable project. All of this is laudable.
However (and you knew that a post from a construction attorney would have a “however”), like any new (or relatively new) design or construction method, there are risks. Insurance policies, form construction contracts and other documents continue to evolve in an attempt to catch up with the ever changing world of innovation and construction. The learning curve is steep as architects, owners, engineers, contractors and subcontractors transition from traditional “straight line” models to the more integrated and “cooperative” methods. Construction professionals steeped in “traditional” methods need time to wrap their heads around the new paradigm.
Allocation of risk will be a big issue in construction defect, breach of contract, and design defect litigation. When everyone is involved from the beginning, it can get muddy as to what responsibility falls upon whom. When an architect, engineer, general contractor and HVAC subcontractor are all parties to design decisions: who takes the hit when the compressor fails? When the roofer, mason, GC and design professional are all involved in the material and design decisions, who’s insurance policy ultimately pays if the wall falls down?
Furthermore, when architects and engineers are more involved in the construction management process (something that architects may or may not have the historical skill set to do), will the architects liability coverage kick in should disaster strike due not to the initial design but due to the management decisions of the architect or engineer that is no longer just an owner’s representative.
This discussion does not take into account the human factor in all of this.
Like the charge forward into sustainable construction methods, anything new leads to different types of risks (if not different names for those risks). The same Eeyore like thoughts that I have about sustainable construction apply here. In short, we need to be careful with this new stuff. We need to acknowledge the risks and deal with them. None of this is insurmountable or a reason to ditch the new in favor of the old, but new policy decisions and changes in project delivery need to be carefully considered and contractual/insurance relationships and policies need to be reconsidered for those projects using these methods.
These new delivery methods are great, just don’t let the light of innovation turn into that of an oncoming train.
Thanks again to Chris for allowing me to return the favor for the guest posts at Construction Law Musings. He and I welcome your comments.
Image courtesy EEPaul
Virginia Business Magazine has published the 2011 Legal Elite honorees. Included in that list under the category of Construction are two of my favorite construction legal eagles, Christopher G. Hill and Timothy R. Hughes. Here is what Chris had to say:
I am proud to announce that my peers here in Virginia have named me once again to the Legal Elite in the Construction category. This makes for a run from 2007 through 2011 of being given this honor.
Among those also named to the Legal Elite in Construction are good friends and fellow construction attorneys John Owen, Tim Hughes (@timrhughes), Brett Marston and Greg St. Ours (these last two are fellow members of the VSB Construction and Public Contracts Section Board).