Construction lawyers aren’t just for contracts or lawsuits

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By Bill Ohle
BridgeTower Media Newswires

Not to overstate the obvious, but construction projects never come off entirely without a hitch.

There will always be some source of trouble, be it bad soil, bad weather, bad suppliers or bad subcontractors. Usually, these difficulties are solved cordially and professionally between the parties.

The owner and the architect meet with the general contractor, they hash out a compromise and deal with any trouble and finish the project. While this usually involves some delay or increased cost, it is typically done without putting anyone out of business, blowing up the entire project or going to court.

It may come as a surprise, but lawyers can often help with these informal resolutions. Unlike a stereotypical attorney on TV, lawyers are more likely to work out solutions than to be the saboteur in the room. They can help explain various parties’ legal responsibilities, act as buffers between parties that have difficulty communicating directly, help level the playing field for less sophisticated parties, and document agreements after a compromise has been reached. Lawyers also can act as neutral mediators to help parties find common ground, and, of course, take a dispute to the next level if litigation truly is the only option left.

Contractors should remember that, right from the start, the relationship between the parties to a construction project is fundamentally a legal one. At a minimum, it should be governed by a written contract.

Whereas owners, design professionals and contractors are often highly competent in their own areas of specialization, they are not usually experts when it comes to the nuances of complex contractual documents. A lawyer, in contrast, can parse the various responsibilities of each of the parties and help analyze whose duty it is to mend something when it goes wrong.

Responsibility is often shared or various parties assign blame differently, and there is always the risk of a costly extended fight if a solution cannot be reached amicably. A lawyer, simply by being a step removed from a particular project, can often be more objective in weighing the strengths and weaknesses of the various positions, the risks and costs involved, all the while keeping the negotiations grounded in the provisions of the governing contract.

Furthermore, by being less emotionally invested in the immediate disagreement, lawyers are often in a good position to help the parties communicate and make proposals. They can often bring innovative solutions to a dispute that the parties themselves may not be familiar with or would not trust in the absence of advice from someone who has extensive experience and whose day-to-day responsibilities entail resolving construction project disputes.

And, for those less-experienced parties — be they owners, contractors or design professionals — having in their corner someone who has worked with construction projects for years and disputes can give them the needed assurance that they are not being taken advantage of.

In addition, lawyers are often hired to be mediators, who, when positions become so intractable, often act in shuttle diplomacy looking for common ground and emphasizing the financial as well as emotional costs of carrying on or even escalating a dispute. Finally, at the end of the day, any resolution needs to be documented in writing and legally binding. Again, a lawyer can be invaluable in making sure the good intentions of a negotiated resolution are properly explained in writing to protect all the parties if, yet again, problems arise.

Any owner who has had to fire a contractor, or any contractor who has had to walk away in the middle of a project, knows that the likelihood of being made whole in litigation (even if they’ve done nothing wrong) is remote. Litigation is often much more expensive than compromise. An owner or contractor may have a right to terminate a contract, but it is rarely the most least-costly course, and hiring an attorney before a situation gets out of hand may be the wisest choice.

Bill Ohle is an attorney in the Portland, Ore., office of Schwabe, Williamson & Wyatt, and represents business and design professionals in the construction industry. Contact him at 503-796-2414 or [email protected].