The Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Mistake No. 1: Not Realizing It’s All About the Facts
I have practiced law for 40 years, with the vast majority spent as a “construction lawyer.” I have seen great… and bad… construction lawyering, both when on the other side of a dispute, as well as when serving well over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, and I have tried to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following are the Top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making all of them.
No. 1: It’s About the Facts…and the Facts…and the Facts
One of the best construction lawyers around, when asked to provide advice to young construction lawyers, said it best when asked about the four most important things to know about the successful practice of construction law. They are in this order:
- The Facts
- The Facts
- The Facts
- The Facts
This is not a typo. There is no other area of law, including commercial litigation, where there can be scores of factual issues (bids, change orders, delays, supplementation, liens, defects, default, pass-through claims, termination, etc.), each of which has its own subset of hundreds of additional “facts.” In most commercial litigation disputes, the dispute has already occurred. In construction law, many times we are asked to provide advice prior to an issue ripening into a full-blown legal dispute. Is there an ongoing issue on a project that merits a default and/or termination? What are the “tool-box” options available to a party to invoke? Gathering all of these facts, especially from an e-discovery standpoint, can be time consuming (and expensive), but is absolutely critical not only to representing and providing advice to a construction client, but also to trying to achieve a preferred result. That advice may prevent a later full-blown legal dispute or put the client in a better position to obtain a preferred result.
Many construction clients are not sophisticated in the organization and retention of project records. Employees come and go. Part of a construction lawyer’s job is to ask… and ask… and ask… and, yes, bug the client to make sure that all documents are not only preserved, but provided, reviewed, and analyzed. One of my own notable examples was a dispute in which I represented a contractor. Right before the start of a week-long arbitration, I was preparing the site superintendent to testify. And, yes, I had hounded the client to produce all project documents. While doing a mock cross-examination, he smiled at a question and said, “Well, I have that fact documented in my personal, daily project journal I keep on every project.” My response was “WHAT the (expletive deleted)!” That journal had not been provided to me, much less to the other side, and certainly was not a hearing exhibit. I disclosed the journal, produced it immediately, and was able to use it (over objection, but that is one of the advantages of arbitration). It did not play a huge role in the final result (which was a win for my client), but I learned a valuable lesson from this “mistake” and never made it again. Remember, when on the warpath, search for ALL client project documents.
To be clear, the “law” is always a vital part of any construction dispute, both statutory and basic case law. Any good construction lawyer has to know the law and how best to present that law in conjunction with the facts to the decision maker. The oft-heard criticism of arbitration is that arbitrators do not care about the “law” as much as trial court judges. I disagree, but since most construction arbitrators are normally great, experienced construction lawyers, I have found that their adherence to the “facts” is manifest. Ignore facts that hurt your side or be surprised by “facts” that show up in document production at your and your client’s peril.
Finally, at any hearing, the construction lawyer that has done his or her homework and knows the facts in and out is normally the most successful and persuasive. In a recent arbitration, one older lawyer was searching unfruitfully for an exhibit, when a young (well-trained) lawyer on the other side helpfully piped up saying, “Look at Volume 3, Exhibit 75.” That young lawyer knew the other side’s exhibits as well as his own. It was impressive. Was that enough to sway my final award? Of course not, but it did show me which side was more prepared and persuasive.
So, the moral of this mistake is to always, always remember: It’s. All. About. The. Facts.