“You’ll be hearing from my lawyer!” is a commonly heard line from many a TV show or movie. However, since art often imitates life, many of us have probably had the distinct misfortune of having the same phrase directed our way in real life.
Often, it’s more of a threat than an actual statement of fact. But it begs the question: when it comes to legal matters in construction, how do you know when a lawyer is actually required? The answer to that pivotal question? It depends. Please read on as we go over some real-world scenarios where hiring a construction lawyer might be advisable.
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What Do Construction Lawyers Do?
Construction law lawyers assist a wide variety of clients. They represent large companies, individual workers, property owners, sureties – anyone who touches the process of construction may need a construction attorney at some time or another. There are a ton of different reasons these lawyers might be needed, but workmanship issues and payment disputes are two of the most common areas of construction law.
Read our main article about the subject: Construction Law – What Contractors, Subs, and Suppliers Must Know
How Do I Know If I Need to Hire an Attorney to Solve a Dispute?
Unfortunately, that’s a hard question to answer. Whether or not a construction attorney is needed will vary greatly depending on the specific factual circumstances. Still, there are general principles that apply.
Let’s take a look at some common scenarios.
Do I Need a Construction Attorney to go to Court?
This one isn’t quite cut and dry, but the answer is almost always yes.
Everyone has the right to represent themselves in court. That’s a basic tenement of law in the United States. However, most construction businesses aren’t sole proprietorships. Meaning, most of the construction companies providing construction work won’t be doing it as simply themselves, the individual, in the eyes of the law.
Whether it’s an LLC, an incorporated company, an LLP, or something else – any organizational structure that isn’t a sole proprietorship will require representation in order to appear in court. That’s true even for individuals operating their business as some other entity (like an LLC). So, in the majority of cases, a construction lawyer will be needed in order to go to court.
For those that are entitled to represent themselves in court, often, it’s still a very bad idea. There’s a mountain of literature out there proving that legally representing yourself in court is a bad idea. Lawyers are experts at their trade, and there’s a reason they get paid to do what they do.
Are Construction Attorneys Needed for Small Claims Court?
Small claims court is unique. It’s specifically designed to be a faster, less expensive, and overall more efficient version of traditional litigation. Plus, it’s designed so that lawyers aren’t really needed in the same way they’re needed in regular litigation. However, the same rule applies as above. Individuals (or sole proprietors) can represent themselves in court, but any other type of entity must be represented.
Also, a lien or bond enforcement action belongs in “regular court” and not in small claims court, as do most other construction-related claims and issues.
Do All Construction Payment Disputes Require an Attorney?
I’m afraid you might not like this answer either, but, it depends.
Leveraging Liens, Bonds, and Potential Legal Claims May Not Require a Lawyer
Not every construction payment dispute will require the use of an attorney. Every state’s mechanics lien and bond claim laws can be leveraged without the use of an attorney. Even when it comes to actually making a lien claim or a bond claim – very typically, a claimant can do that without the use of an attorney. Of course, when it comes to enforcing these claims, a construction attorney will almost always be necessary – and it will always be a good idea to have a lawyer involved when proceeding with an enforcement action of either a lien claim or a bond claim.
Unlike lien and bond claims, prompt payment and retainage claims will very typically require some form of legal action. If that’s the case, you probably need an attorney, and you should definitely hire one regardless. However, like lien and bond claims, there is an opportunity to leverage these claims before taking to the courts. Construction payment remedies can be extremely severe – so the threat of a claim will always carry some weight. When a letter demanding payment is coupled threat of legal action and sent by a construction lawyer, often, the dispute can be resolved before legal action becomes necessary.
If Legal Threats Dont’s Work, then Legal Action (and Lawyers) May be Necessary
While the above disputes are specific for the construction industry, other legal claims – like a breach of contract, unjust enrichment, quantum emirate, and countless more – these claims must be made in a courtroom. These claims may also be leveraged (with or without a lawyer – but a lawyer would help!) in an attempt to resolve the dispute without litigation. However, the threat of litigation won’t be enough to do the trick every time – and if suit must be filed, an attorney is typically necessary.
Regardless of whether an attorney’s help is required, the guidance of a construction lawyer will make this process more easily navigable.
Should a Construction Contract be Reviewed by a Lawyer Before Signing?
YES! In fact, this is as close to a no-brainer as it gets.
It’s common for contractors, subs, suppliers, or other trades to fall in love with one contract and use it on every job. Honestly, that’s great! Using the same contract is the best way to ensure familiarity with the terms of the agreement. Still, prior to adopting a contract of choice, it’s wise to have it reviewed by a construction lawyer. They will be able to assess the strengths and weaknesses of the agreement, spot potential points of contention, and snuff out potential liabilities.
Even if a party will be using a contract form they’re unfamiliar with, it’s always a good idea to have the agreement reviewed by a construction attorney before signing the dotted line. It’s not uncommon for construction contracts to contain troublesome clauses that shift risk, create an inordinate amount of liability, or consent to less-than-ideal dispute resolution terms. Construction lawyers are experts at deciphering contracts, and they will be able to help construction businesses avoid potential pitfalls.
What Are Some Additional Circumstances Where You Might Need a Construction Lawyer?
We’ve described a number of different scenarios in this article where consulting a construction lawyer would be helpful (if not mandatory). Still, let’s take a rapid-fire look at a few common scenarios that require the touch of a construction lawyer.
As you’ll notice, the saying “An ounce of prevention is worth a pound of the cure” applies well here. By and large, the best way to utilize a construction lawyer is to avoid legal issues before they pop up. Even when a construction lawyer is reactively brought in – doing so sooner than later can help keep a dispute under control.
Parties being sued.
Fighting a lawsuit without the help of a lawyer is a bad idea. Sure, a lawyer might get expensive – but losing the suit (and failing to minimize exposure) will cost a lot more. Not to mention, they might be able to identify cross-claims to work in your favor.
Parties suing someone else.
Same as above! Fighting a legal battle without the help of legal experts is just a bad idea. Engaging in a lawsuit without the representation of a lawyer might not even be legally possible – and it’s definitely not the best option.
Parties under the threat of suit.
This one is a little less cut and dry. Not every threat of a lawsuit will require consulting a construction lawyer. However, with the help of a lawyer, it’s much easier to decipher which threats are BS and which ones have some merit. By consulting a lawyer, a construction business will be able to better assess potential liabilities.
“I don’t know how to proceed, but I need to get paid.”
We see this all the time at the Construction Legal Center, and it’s a common position to be in working in this industry. When payments aren’t coming, construction businesses have a number of tools at their disposal. Deciding which ones are the most appropriate, most feasible, and most likely to result in payment will be much easier with the help of a construction lawyer.
There’s an injury on the job.
Both the party injured on the job and their employer will have a use for a construction lawyer in the aftermath of an onsite incident. Injury claims and workers compensation disputes can get ugly, fast. A lawyer can help to keep things on track and hopefully out of the courtroom.
Claims that construction is defective.
Claims of defective construction are one of the biggest drivers of construction litigation. Regardless of what side a party is on – whether they’re claiming a defect is present or defending against a claim of defective work – construction lawyers will help to provide clarity to the situation and might actually help to avoid litigation. They’ll be able to decipher the relevant laws and contractual duties in order to uncover who, if anyone, is at fault and who might be liable.
Terminating a contract, or taking some other action set out in the agreement.
Want to exercise a feature of the contract, like a termination clause or an escalation clause? A contract might provide for the ability to take an action like a termination or a price escalation – but proceeding without caution could actually result in liability. Before exercising contractual options, it’s a good idea to talk to a lawyer about how exactly that should be done and some potential issues that might arise. Whether that’s before the agreement is signed or before some action will be taken, the guidance of a construction lawyer is invaluable.
If I Need a Lawyer, What Should I Do to Help or Prepare?
- Be organized. Have all of your paperwork organized and readily accessible.
- Document everything. Get your contracts, change orders, and other important documents in writing and signed. Have backup paperwork for anything that’s related to the dispute.
- Follow your contracts to the letter and send any required contract notices. Following your contract to the letter doesn’t give a potential legal opponent much room to maneuver.
- Do everything you can to avoid disputes. This one might seem a little Pollyanna, but it’s usually easier – and less expensive! – to avoid a problem altogether than to try to smooth out a problem after it’s already happened.
- For payment issues, leverage your lien rights. Send preliminary notices and a notice of intent to lien if a payment issue develops. Lien rights are just that – rights. They’re there to make sure folks just like you get paid the money they’ve earned. Don’t be shy about leveraging your rights!
Finding the Right Construction Lawyer
On these sites, individuals can ask their legal questions and receive legal information and legal advice, and lawyers can be sorted by location, practice area, and consumer ratings. When a construction dispute has reached the point of no return, and a construction lawyer is needed, these sites do a great job of connecting parties with the right lawyers for the situation at hand.