While construction law is generally a lesser-known practice of law amongst law students, it is by no means small. In fact, construction is a multi-billion dollar industry, making up the largest segment of the production sector the US’s GDP, and the ABA’s Forum on Construction Law has more than 5,500+ members spanning all 50 states and several other countries.
But, since many law students don’t know much about it, we’re here to help in two big ways. First, we encourage interested law students to join us on Oct. 20th for “Building Results,” a panel discussion on litigation and dispute resolution in construction law (more below).
Second, we are providing 5 questions to ask to get you started in a career in construction law:
What is construction law, anyway?
Construction law is the practice of law dealing with design and construction related issues on public and private projects, ranging from homes to skyscrapers, railroads to airports, and everything in between. Despite this, it is a practice area where you regularly use and rely upon core concepts obtained from courses in law school such as contracts, torts, administrative law, and remedies.
In fact, the practice builds upon basic legal principles and functions, including contract negotiation and preparation, contract award and administration, lobbying and governmental relations, oversight and document review, financial lending and transactions, insurance, licensing, and, of course, dispute resolution and litigation; however, it is specialized for the complexities of the industry. One such complexity includes the legal relationships among the multitude of parties, such as design professionals, contractors, subcontractors, material suppliers, sureties, insurers, and tradesmen and women, all of whom are typically engaged in varying degrees in the construction project.
Like other highly complex fields, the construction process has created its own unique customs, practices, and even vocabulary, which, in turn, has led courts and legislatures to develop legal principles consistent with the industry’s realities.
Wait, does that mean construction lawyers do both litigation and transactional work?
Yes, generally. Most practitioners are with their clients “from cradle to grave,” or from project inception to the very last dispute. This means that construction lawyers have the unique opportunity to develop both transactional and litigation skills, which, again, include drafting the contracts, advising clients throughout the projects, and litigating disputed claims during and at the end of the projects. These skills, of course, are specialized for the industry, especially with regards to its different dispute resolution processes.
What is so different about handling disputes in construction law?
For a variety of reasons, private dispute resolution techniques are popular amongst highly complex industries, including construction. In construction, “time is money,” especially once the building process has begun because the work simply cannot be interrupted or delayed without serious cost consequences. As follows, the construction industry “places a premium” on quick solutions to legal problems and coordination amongst the various parties. Remember that though they don’t often wear hardhats, construction lawyers are often building one thing: results.
Generally speaking, construction attorneys help to guide their clients through at least four stages of dispute resolution:
- The dispute prevention and cooperation phase, where parties establish an atmosphere of cooperation and lawyers facilitate such through clear contract language,
- The dispute control stage, which often falls on the ‘initial decision maker,’ who is usually the architect, and sometimes requires lawyers to engage in step negotiations so as to provide ‘real-time’ dispute resolutions,
- The facilitated nonbinding resolution stage, where more contentious disputes are handled in a more structured and formalized dispute resolution process, like mediation and nonbinding arbitration, and
- The binding dispute resolution stage, which involves lawyers handling the cases in either court litigation or binding arbitration, which is sometimes international and, again, is often preferred.
Do I have to have a construction-related degree or prior industry experience?
No. While there are several construction lawyers who have experience in the field as engineers or majored in construction-related topics in undergrad, such knowledge is by no means a prerequisite to entry. In fact, the majority of construction lawyers were simply placed on a case and stuck with it. If you’re interested in becoming a construction lawyer, see below on how you can begin engaging in the industry.
Tell me more. How can I learn more about Construction Law?
Reach out to the ABA’s Forum on Construction Law here, connect with Forum members, and start attending events.
We suggest attending “Building Results,” a focused panel discussion on litigation and dispute resolution in construction law sponsored by the Forum’s Division 1 (Litigation & Dispute Resolution) and Membership Committee and co-sponsored by the ABA’s Section of Litigation’s Construction Litigation Committee. This event is taking place on October 20 at 5 p.m. EDT via Zoom.
The distinguished panel includes:
- Alex Dockery, Associate at Goulston & Storrs
- Ed Green, North American Counsel, atSUEZ Water Technologies & Solutions
- Patrick McKnight, Associate at Klehr Harrison Harvey Branzburg LLP
- Roy Wagner, Partner & Leader of Construction Law at Michael Best & Friedrich LLP
They will discuss why alternative dispute resolution, or ADR, and form contracts are so common in construction law; the general characteristics of construction litigation and arbitration; and other typical dispute avoidance forms in construction law, such as dispute resolution boards, or DRBs. Following the panel discussion and a Q&A session, law students and/or recent law student graduates will be placed in virtual networking breakout rooms to meet the panelists, fellow construction lawyers, and other law students with similar interests.
- Philip L. Bruner, Construction Law: The Historical Perspective, in Construction Law 1, 11 (Allensworth, et al. ed., 2009).
- James P. Groton and Stanley P. Skylar, Dispute Resolution Processes, in Construction Law 559, 559 (Allensworth, et al. ed., 2009).