Does the legal world seem like a spectre of impenetrable jargon and terrifying fees? Well, that’s because it is. But as long as you know how to use your lawyer, you don’t have to be a scaredy cat.
Know who you’re dealing with
The first thing you need to know is that there two types of construction lawyers, non-contentious and contentious – or to put it more simply, those who deal with contracts at the beginning of a project and those who take you through the dispute process if it has all gone wrong at the end. As every job will have a contract, but not every contract will produce a dispute, most construction professionals will find themselves primarily dealing with non-contentious lawyers.
The client will appoint a lawyer at the beginning to represent their interests and draw up the contract. This lawyer will then deal with the other members of the construction team – for example, the QS will speak to the lawyer when they are compiling the tender documents and lining up a contractor for the job. “On a reasonable sized scheme this would involve talking to the lawyer about half a dozen times,” says Mark Hackett, managing partner of the legal support group at Davis Langdon. Contractors, on the other hand, will tend to have their own in-house lawyers who will deal with any changes to the standard contract that are proposed by the client – and the more sophisticated the client, the more likely they are to make changes.
Contentious lawyers are wheeled in when something has gone wrong, and even firms with in-house lawyers will generally appoint a specialist to fight their case. The amount of time that a dispute takes to resolve can vary wildly, depending on whether it goes to arbitration, mediation, adjudication or litigation. An adjudication can be over in as little as 28 days, which means that frequent contact is a must. “In that kind of case we’d probably be in contact every day because of the short timescales involved,” says Sean Smiley, commercial director at Shepherd Construction. At the opposite end of the scale a complex, protracted problem could drag you through the courts and take four or five years to resolve.
How much is this going to cost?
When most people hear “lawyers”, they think “fees”. Mounting costs will be more of an issue on disputes, but it’s still worth checking the policy with contracts if your firm is not the one paying the legal fees. “I always like to go through the client rather than approach the lawyer direct,” says Betsy Jones, a quantity surveyor at Gleeds. “My concern is that if I phone the solicitor myself the client will be billed for the time and ask what I was doing.”
If you deal with lawyers directly it is advisable to ask for an estimate of the legal costs. And remember that most lawyers charge by the hour, so prepare for any meetings to avoid wasting time. If you are involved in a dispute, this would probably mean sending the lawyer all the information that is relevant to the case in an organised format before your first meeting. “Anything that helps the lawyer work more efficiently will save you money,” says Jonathan Raynes, partner in construction law firm Kennedys. Working efficiently doesn’t mean rushing through the details of the case at the start, though, as this approach can lead to time-consuming complications later.
If you have an in-house lawyer, you can reduce the financial repercussions of a dispute by involving them as much as possible. And it is worth thinking about how much time you spend on it yourself, as your time also costs the company money. For example, you could come in for criticism if you do a huge amount of work for a fairly small claim.
Getting the best out of your lawyer
The key to achieving the best results from your lawyer is to know exactly what you want from them. This goes for negotiating contracts and dealing with disputes. Mike Myles, a project manager at developer Land Securities, says lawyers should not be treated differently to any other member of a project team. Like engineers and architects, they need a clear brief to work from. “As a client, we need to convey a clear brief to our lawyers so that they can convert this into the relevant legal documents,” he says.
If you are involved in a dispute, it is particularly important that you have a clear vision of the needs of your company and don’t get bogged down with your own gripes with different people on the project. That way the lawyer can make sure that advice is steered to meeting that need, rather than any ancillary issues.
This is true of the most basic information. “It might seem obvious but it is always helpful to know whether you’re guilty and want to clear it up as soon as possible, innocent and want to clear your name, or your priority is simply to keep it all quiet,” says Raynes. Being clear will also ensure that you don’t get sidetracked and spend hours – which of course you will be billed for – providing the lawyer with irrelevant information.
How should I prepare?
“You need absolute frankness.” This is what Nick Lane, a construction lawyer at Olswang, says is the most important thing to remember when talking your lawyer through a dispute. He says the lawyer is on your side, so failing to mention things that cast the company in a less than favourable light will not help your cause. During a trial, details will come under scrutiny and the chances of anything remaining hidden are very low – so it pays to make sure that your lawyer, rather than the opposition, is the first to know.
Even with the best will in the world, without the relevant evidence, your lawyer won’t be able to do their job properly. Most lawyers agree the best thing you can do is to send a box of the relevant information across before your first meeting. This should include a full copy of the contract, a copy of all relevant correspondence and a short narrative of the facts, including what you see as the major problem to be solved.
“The lawyer must be well prepared, so they can get to the point, ask the right questions and be able to provide some productive advice,” says Dominic Helps, partner at Shadbolt & Co. “It’s a bit like going to see your GP – what you get out of it will depend on what you provide.”
What happens when things go wrong?
However well prepared, organised and helpful you are, lawyer–client relationships don’t always gel. If you feel it’s not working, the most direct approach is to talk to your lawyer and try to figure out where your differences lie.
Davis Langdon’s Hackett says it is important to talk things through in the first instance because it could be you who is misunderstanding the situation. If you don’t get the legal jargon, ask them to explain it. Equally, don’t forget they may not be au fait with the technical terms you use.
However, you should also remember that lawyers are simply professionals, like you, and therefore fallible. “If you don’t feel as if you’re getting value for money, tell them exactly that,” says Howard Robinson, the partner responsible for legal matters at Gleeds. He says that most firms will have a clients complaints procedure, though it is very rare that things get that far.
If you are unable to resolve the matter, you may need to take your complaint to the Law Society, which regulates solicitors and will try to help you and your lawyer reach a solution. Where this is not possible it can help you claim compensation and provide advice on taking the matter further, possibly even to court.
Dos and don’ts in the lawyer’s office
- Don’t always assume that a lawyer knows more than you do, particularly when there is a commercial element.
- Lawyers deal in precise words, so don’t be loose with your language
- Always ask if you don’t understand. Some technical words have very specific meanings.
- Try to prepare as much relevant information as possible.
- Always try to provide context with your questions, as this will get your lawyer thinking along the right lines quicker.
- Be realistic with your deadlines. The more time you give your lawyer to prepare, the higher quality the answer you will get.
- Before you start, ask your lawyer for an estimate of how much the advice is likely to cost. If you have a budget in mind, let the lawyer know.
By Terry Styant, Wates Group Legal Counsel