The Viewpoint in the latest Engineering News Record (ENR), Lawyer as Constructor?,raised an interesting point – whether the construction industry is better off having attorneys involved in the construction process. The author thinks not, that the use of construction attorneys has taken over the construction process and slowed projects down immeasurably. I have no doubt that once attorneys get involved the process can slow down, but delays on projects are driven more by today’s marketplace than construction attorneys.
Walter Wells writes in his editorial that the American construction industry is being run by lawyers. He compares projects like the Pentagon, which took two years to build, to the Four World Trade Center, which was one third the size and took 12 years to build. He concludes that the threat of litigation and construction lawyers are the reason the Four World Trade Center took so long to build.
But, I think this places too much blame on attorneys and fails to consider the substantially different construction marketplace. Sure, the Pentagon was built in two years, but that project is not an apples to apples comparison to the Four World Trade Center, which took 144 months. I don’t think the Pentagon contractors were dealing with the vast number of interest groups involved in the Four World Trade Center project or the multi-layer bureaucracy involved. Nor do I think the Pentagon had to address the impact the structure would have on endangered plant and animal species that today’s laws require contractors to consider.
Similarly, construction attorneys are not solely to blame for the increase in construction litigation. As the saying goes, it takes two to tango. Contractors are having to defend against construction process related claims as well as post-construction claims. Our society has become substantially more litigious and contractors are often caught in the middle, but have to defend the claim.
I agree that attorneys do occasionally slow down the process and the threat of litigation looms large in every project. But our purpose is to ensure our clients are addressing the multitude of laws impacting the project, the multiple levels of insurance required, and the shifting of each party’s responsibilities set forth in the contract. Today’s market place is substantially different than in the 1940’s and we serve our clients’ interest in preparing construction contracts that acknowledge the changed marketplace and in defending contractors in a litigious environment.
Ultimately, is the construction industry better off having counsel engaged in the project? I think that it is because competent counsel at the beginning of a project can often times help the contractor avoid the claims and litigation that arise during and after the project.