The four types of construction lawyer
There are four types of construction lawyer, so make sure you get the one you need, writes Samuel J Woff.
I once received an unsolicited (but welcome) call from an industry body asking me to speak at an upcoming seminar. They needed a “construction lawyer” guest speaker, and a colleague had passed on my number. Of course, in my enthusiasm I immediately said yes, before hearing the specifics of what they wanted me to talk about. This was an error. As the conversation unfolded, and they explained they were an industry body for residential property developers, and they wanted someone who could speak about drafting tips for domestic construction contracts, I grew increasing uncomfortable. This wasn’t my deepest field of knowledge!
I sheepishly backtracked, and explained not only was I not a “front end” construction lawyer who drafted contracts, and further I worked with an entirely different group of clients — clients who were less interested in domestic houses and more interested in commercial hospitals. So I probably wasn’t the best option. I sensed confusion from the caller — “But I thought you were a construction lawyer?” As I fumbled for an answer, the pressure of the moment produced an insight, and I went on to explain “yes, I am a construction lawyer. But there are construction lawyers, and construction lawyers”.
A broad church
Construction law is a broad church, under which there are numerous sub-specialties. And as it struck me during the call, and has continued to resonate with me since, one way of categorising the various members of our profession is by asking two questions:
Do you assist clients draft construction contracts (“front end”) or help clients resolve construction disputes (“back end”)?
Do you work on domestic building (generally speaking, smaller projects) or commercial building (again, generally speaking, larger projects)?
Mapping these answer in a matrix gives us four potential types of construction lawyer. The purpose of this article is to explore some of the rich differences between these difference species of professional.
However, before proceeding, a note. The above grid presents as a neat delineation, but clearly, as in all aspects of the law, there is room for grey zones of uncertainty. These categories are not hermetically sealed, and several ambiguities immediately present themselves to cut across the crispness of these divisions.
For instance, where does the “middle end” of ongoing advisory during the execution stage of the works fit? It’s not drafting the contract, but still it’s not quiet running a dispute — it’s a border state.
Further, the divide between domestic and commercial disputes are not always as neat as it may ostensibly seem. In a bygone era of single story houses, on one hand, and shipyards on the other, the distinction was tolerably clear. However, in modern times many so-called “domestic” disputes are actually large, complicated, expensive, and with high stakes, with the archetypical example being disputes relating to significant domestic projects, like high-rise residential towers. Modern domestic disputes can, depending on their flavour and subject matter, thus bear far more similarity to what we might instinctively call a “commercial” construction dispute, despite the superficially domestic subject matter of the dispute. This is causing strain for tribunals established to resolve domestic building disputes from an earlier time — they are buckling under the pressure of the metamorphous of a percentage of their traditional caseload. Therefore, in utilising the matrix above, we should be wary of incorrect labels, as “domestic” does not always mean a small, cottage industry type of dispute between an unsophisticated house owner and a the local builder, such as my maternal grandfather.
Other anomalies may no doubt be noted. Yet despite these minor uncertainties, the above division gives us a very useful insight into the different types of construction lawyer, and provides a presaging hint for the following discussion comparing and contrasting them.
“Front end” and “back end”
We now turn to examine in deeper detail the differences between:
“Front end” and “back end”
Domestic and commercial
The first, and the more obvious dividing line for a construction lawyer, is to ask whether you are a front end contract “drafter”, or a back end contract “fighter”. This is usually a fairly apparent dichotomy to anyone with even a passing knowledge of construction law, and most lawyers helpfully identify themselves to clients along this spectrum by saying thing such as “I work mainly in front end” or “I only handle construction disputes”.
As an immediate aside, we, of course, must avoid another specious trap, and that is of oversimplifying the split (in jurisdictions with a divided profession) by saying that, in general solicitors “draft” and barristers “fight”. While traditionally it may have been correct as a general rule to draw this simplification, we have left such quaint pre-conceived ideas of the proper role of each professional in an earlier, Wind in the Willows-type era. In the present day era of construction law, many “back end”, litigious construction lawyers are solicitors, and the idea that barristers have a monopoly on dispute-based legal work can, and should, be rejected as an outdated anachronism.
Returning to the comparison at hand, many lawyers have a good internal instinct from an early stage in their career whether they will be drawn to front end or back end work, that is, crudely, whether they “making” deals or “breaking” them. This instinct is helpful, and should be respected when it emerges, because it cuts to the heart of the distinction between a front end and back end lawyer.
On the front-end of the spectrum, you are assisting your client finalise a deal which will benefit their wealth or welfare, by ensuring the terms of the contract are as favourable as the counterparty will bear. Whilst there is a course some competitive tension in the inevitable horse-trading of terms and conditions that follow, and the push and pull of negotiation, front end work is ultimately a co-operative exercise with the counterparty. Both sides want the deal to get done, and the zenith of the lawyer’s involvement (and, not coincidentally, the feeling where the greatest instincts of professional pride are felt) is on “completion”, when the legal contract and marriage between the owner, builder, subcontractor (pick two) is finally consummated. The feeling of satisfaction felt when all parties get around a conference room and, in a quasi-religious ceremony, put ink to paper and sign the contract, underscores that regardless of the size or stakes of the project, front end construction law work is fundamentally a co-operative endeavour.
At the other end of the spectrum are the lawyers who grew up with a burning desire to Tom Cruise “can’t handle the truth” someone, who see the pinnacle of professional satisfaction coming not from assisting two clients make a business deal, but by defeating another person through the use of brute logical argument, and a bit of flourish and panache. And this, as is readily apparent, is a far more belligerent mindset. Not that people who gravitate towards back-end, litigious work are necessarily aggressive (though some would say it helps), it’s simply that such lawyers prefer a more competitive, rather than collaborative, approach to their legal work. A bit of testing our intellectual mettle against an opponent, like an amateur tennis player for whom the essence of enjoyment is overcoming their partner, rather than an angler who enjoys company and co-operation. And such competition reigns in back end work, which is almost inevitably a zero sum game, where your client’s gain is almost inevitably the counterparties’ loss. Thus, this means that in contradiction to front end work, which is at its core a collaborative, litigation can be (and often is) competitive, cut-throat and only just barely cordial. It’s us and them, right and wrong, good and bad, and such a mindset is entirely different from a lawyer who prefers a more relationship-based, joint problem solving approach to their work.
Domestic and commercial
The other dividing line discussed above is the distinction between domestic and commercial construction projects. And while the dividing line between such categories is blurred (as noted above), a dispute over the precise borders between India and Pakistan does not prevent us readily concluding that two countries exist. As it is here. Construction legal work, whether front end or back end, takes on a different characteristic depending on whether the key indicia — size of project — is small or large.
On “small” domestic projects, budgets for legal work are almost inevitably smaller. In a world dominated by billable units, a smaller budget inevitably means that lawyers cannot spend as much time producing a product for these projects. Such fiscal constraint manifests itself in a number of ways depending on whether we are discussing front end or back end work. For “front end work, the most obvious corollary of the need to reduce lawyers time is the extensive (almost ubiquitous) use of pre-drafted “standard form” contracts which can be slightly tweaked depending on the preferences of the transacting owner and builder. Much like an off the rack suit, it’s unlikely to be a spectacular fit, but will be good enough for those on a tighter budget. At the back end, the need to reduce legal fees and lawyer time often means there is an overwhelming economic desire to find a commercial settlement to the case, rather that have the value of what is being disputed consumed by non-recoverable legal fees.
And what of “large” commercial projects? The primary distinction is of course that these projects have significantly larger budgets, and therefore the wherewithal to pay for additional lawyer time and receive a higher grade of service in return. In contract drafting, this means contracts are (like the Saville Row suit) “bespoke”, with each clause carefully fine tuned to the needs and preferences of the parties, rather than simply being plucked indiscriminately off the shelf. At the back end, the increased budget size allocated to lawyers (not to mention the size of the dispute itself) inevitably encourages parties to prefer to fight it out, rather than settle their differences.
The four archetypical construction lawyers
Applying each of these dividing lines through a matrix (collaborative and competitive, high-budget and low-budget) results in four very different types of professional. As I believe I am breaking new ground here, I hereby christen these as the “ER doctor”, the “negotiator”, “the “bespoke tailor” and the “deep diver”, and collectively these comprise the “four types of construction lawyer”.
Let’s now dig a little deeper into the professional life and skill set of these four individuals, getting to know them a little better.
The “ER Doctor” — Front end domestic
How does a doctor in an emergency ward behave? Two aspects of their environment play an influence: first, the need to work collaborate to achieve best results and second, time sensitivity — decisions need to be made quickly, sometimes instantly, on incomplete information. Essentially ER doctors walk around saying: “We need to work together to heal this person. And we need to act now. Based on the limited information in the chart, and how we have cured similar maladies before, here is what I judge it best to do”.
And from our discussion above, we can see that a domestic front end construction lawyer also works in a normatively collaborative, but time sensitive, environment. Decisions must be taken quickly — there is no budget for the lawyer to linger. Therefore, such a lawyer should be embedded with the skill, experience and confidence to quickly and confidently advise a client on the most appropriate standard from contract to utilise for the project, and then assist with the necessary light touch amendments that may be appropriate and within the projects budget. Just like how the ER doctor will not engage in extensive correspondence of family history with the family GP, in a similar vein for the domestic front end construction lawyer, extensive negotiations with a counterparty will neither be required or appropriate, nor will there be the time to go into slavish detail about the specifics of the project. Front end domestic construction law is an environment where you can only afford to have some (not all) the facts and background, and so the balance of prudent decision making must be filled by the lawyer’s accumulated skills and experience.
It seems trite, but it is worth underscoring that skills and experience (not just raw intelligence, for which skills and experience are sometimes mistaken) are absolutely essential to work in this field, because the budget is simply not available for you to go into every minute detail in an effort to engineer a legal solution from the ground up. Most lawyers, if given enough time to investigate an issue, can come to a competent answer, but that indulgent intellectual luxury is simply not open in matters of this smaller, tightly budgeted nature. Lawyers, to be of value to domestic clients, must almost instantly “know” the right answer, rather than being able, with some additional time and research, to “figure it out”. Domestic front end lawyers must therefore bring to the table a pre-existing and finely honed “gut feel” for the right structure of the deal, the right standard form, and the most pressing amendments, ultimately producing a legal contract with is adequately fit for the project’s purpose at a modest price. For this experience-rich and necessarily decisive lawyer, the comparator of an emergency room doctor glancing at charts, asking a few questions and then directing the appropriate course of treatment based on limited patient specific facts but extensive generalised medical experience is an apposite one.
As any one client’s budget will be limited, a domestic front end construction lawyer’s practice will inevitably be portfolio based, where the lawyer has a number of active files and active clients at any one time. The modest fees available from each client are compensated for by having a higher number of active clients. This creates multiple pulls on the lawyer’s limited time and intellectual bandwidth, and reinforces the economic imperative not to spend too much time (that is, bill the client too many fees) on any one given project. Fortunately, given the collaborative nature of front end work, any lawyer engaged on the other side of the transaction is likely to be sensitive to the limited legal fees available, and will do their best (in the interest of getting the deal done, as well as by their own limited budgets) to be helpful, pragmatic and not overly pedantic in their negotiation strategy. Keeping legal fees appropriately modest leaves more money for the clients to get on with the project, and the next project, which is in everyone’s interest.
The “negotiator” — Back end domestic
When the terrorists storm the stadium, it’s undoubtedly an adversarial environment, but the costs of an actual fight are prohibitively high for both the bad guys and the government. No one has an appetite to get shot. In such an antagonistic situation, but where the actual desire to fight is low, inevitably the microphone is handed to someone in a windbreaker — the “negotiator”.
In the same way, the back end domestic lawyer, combines a fee sensitive environment (i.e. low appetite to litigate) with an inherently combative, not collaborative environment. Something has gone wrong on the project (either it cost too much, took too long, or was defective in some way) and the lawyer has to attempt to obtain financial compensation from the counterparty to the deal, without taking too long to do so, and without getting much co-operation from the lawyer on the other side.
This is a tough ask! The best approach to take in this situation, as with the terrorists, is a negotiated settlement. In a fee sensitive environment, full scale warfare just doesn’t make sense. In the common law world we utilise the adversarial system of justice, and the unfortunate reality of this style of justice is that battles (or wars) fought under this methodology are expensive to wage. Settlement is a far quicker, and therefore cheaper, way of arriving at an adequate outcome — not the best legal result, certainly, but an adequate commercial result that allows the dispute to be quelled and everyone to get on with their business.
The archetypical situation in the domestic back end lawyer’s consultation room goes as thus — “yes, the builder has breached the contract by supplying defective windows, and you have a theoretical entitlement to sue the builder for $100. However, chasing that money through the courts will cost you at least $120, take 9 months, and is no guarantee you will win. So even though you have been wronged, and I know you are upset, you best option is to try and settle with the builder for, say, $75 today. Let me know what you think and I’ll pick up the phone now”.
And of course a similar conversation is happening in the builder’s conference room — “the reality, Mr Builder, is that a court will probably (not certainly, but probably) find the windows you supplied were defective, and you will have to pay the owner $100, plus my legal fees of $120. Ands it will take nine months. You’re a busy person and you and your business don’t need that. Happily, there’s a way out. I just got a call saying the owner will accept $75 in settlement to end this now — shall I say yes? $75 today, or $220 in nine months time. Your call”
The reader can see how readily a deal can be reached in these circumstances. In a situation where neither side has the funds or appetite for a protracted battle, a peace treaty is almost assured. A good majority of a domestic back end construction lawyer’s time will therefore be spent on haggling a negotiated settlement to any one given dispute. Of course, settlement is not always able to be obtained — to settle, both sides must be accurately able to assess the likelihood of an outcome in court, and want to do a deal — and this is not always possible due to missing information or emotions clouding a willingness to settle, so a domestic back end lawyer will still see a percentage of their clients end up in court. But settlement (and its cost saving function) will always remain a clear and viable strategy, ready to be deployed whenever the time is ripe, even at the door of court or after the trial has commenced.
If court is a pursued option, the lawyer will have to engage not only with the words of the construction contract to determine liability, but also with the multitude of legislative instruments which litter and regulate the domestic construction law environment. Because domestic construction disputes are so common, there is an almost overwhelming pressure on government to “do something” to regulate the space and improve protections for home owners (i.e. voters). Unfortunately, such well-meaning interventions are not always properly planned, well sequenced, clearly advertised or indeed uniform between jurisdictions. This patchwork quilt of legislative detritus that has application over a domestic construction dispute creates a further layer of complexity in cases ill-equipped to bear the additional cost complexity brings, and further reinforces the need for a domestic construction lawyer to be an expert at recognising the applicability of and navigating this legislative minefield. It cannot be faked.
The “bespoke tailor” — Front end commercial
For those with the luxury of an expansive budget, and an interest in classics men’s tailoring, purchasing a “bespoke” suit from a tailor on Saville Row is the holy grail of sartorial attainment. A beautifully draping garment, which hugs and fits to your every curve and joint, accentuating your masculinise traits and obscuring your bodily deficiencies, made from the ground up specifically for you, and you alone, is for many an aspirational goal. What provides the entire process additional charm, and value, is that the entire process is completely devoid of any of the trappings of industrialisation, and the final product produced by seasoned experts remains a true artisanal product in an era of mass production. The perfect fit, the perfect story, the perfect suit.
In many ways, this is analogous to the craftsman ethic of the front end commercial construction lawyer. Due to the greater size and “commerciality” of these projects, a lawyer assisting in relation to commercial projects almost inevitably has an expansive budget, and therefore greater latitude, to provide a more detailed and better calibrated contractual product. No off the rack, slightly ill-fitting, and imported garment here. Instead, the lawyer can take the time to craft a perfectly fitting, ground up, “Saville Row” bespoke contract. To consider carefully every detail.
Of course such contracts take more time to draft, and more intellectual care to ensure all the constituent contractual mechanics harmonise together and reflect the parties agreed allocation of risks and responsibilities. This makes them significantly more expensive than standard form varieties. However, the ultimate product is a closely tailored agreement which tightly reflects the needs and wishes of the contracting parties, and so for clients with the luxury of a budget, this is often seen as the preferred option.
As a consequence, a commercial front end lawyer has the freedom to go deep into the contract, in a collaborative way with the counter-party, and trade multiple iterations back and forth, each with subtle variations in drafting, until a perfectly crafted agreement is arrived at. It is the essence of artisanal “deep work”, as opposed to the fleeting, comparatively shallow nature of the transactional work of a busy front end domestic construction lawyer. It therefore is suitable for those lawyers who prefer the intellectual satisfaction, not of firing a variety of glib but “good enough” solutions, but who like to grapple deeply with a given issue or set of issues, and engage deeply and meaningfully with the stated needs of their client and the project. To be sure, this is not everyone’s predilection, but for those with the required temperament, finalising a meticulously crafted commercial construction agreement, just like constructing a suit for Price Charles, represents the zenith of professional glory.
The “deep diver” — Back end commercial
The ruins of Pompeii lie just outside the overhyped Italian city of Naples, and through the decades have been combed carefully over, not just historically by legionaries, but currently by legions of foreign tourists and (in the appropriately designated zones) fiendishly careful archaeologists. These men and women are on a mission. As opposed to the tourists who are here to see the present-day spectacle of a well-preserved Roman town, the professionals with the brushes and tiny pickaxes are more interested in historical facts, pouring carefully over the minute detail of the uncovered remains, as they try to put the pieces of the puzzle together and reach a professional supposition about “what life was like” for the average Pompeiian circa 79 A.D.
In the same way, with the appropriate replacement of tools and sand for keyboards and coffee, this, deep careful dive into the past reflects the work of a commercial back end lawyer. These lawyers work in a relatively fee insensitive, and highly combative environment, and therefore have the luxury, and indeed necessity, of diving into all aspects of the litigation in minute detail. They have the necessity of doing so, because commercial cases (1) rarely settle and (2) are highly fact dependant.
Addressing first the hesitancy to settle, lived experience is that commercial cases settle less frequently than their domestic counterparts. Why is this? In the first instance, legal fees are not an encouragement to reach a negotiated solution because they are often dwarfed by the amount in dispute. Further, given the unique nature of most commercial construction disputes (one house might be like another, but two oil rigs are rarely the same) and the complexity of the issues, it can be difficult to come to an informed view beforehand about what the likely outcomes of a court case are. If you have no idea what the result will be, it makes it very difficult — almost impossible — to identify and recommend an appropriate settlement amount with your client, to say nothing of trying to agree on this amount with your counterparty. Therefore, in large commercial construction litigation, settlement is a rarely pursued option, and fully joining battle is far more regularly the norm.
Second, the other reason a fine and close examination of the facts is so important is knowledge of the precise facts is critical to a successful outcome of a commercial construction dispute. In a domestic construction dispute, because one house is tolerably similar to another, and the pattern of building them (relatively) codified and predictable, it is less important to actually “know” what happened on a given project — certain amount of “educated guesswork” is possible (and, being cheaper, appropriate). However, in a commercial project, given each project is generally speaking unique, such experience-based supposition about what happened is not possible, and the real, core, actual underlying facts must be uncovered and catalogued. After all, in a domestic context you might readily (and not unreasonably) assume a cracked tile was the responsibility of the roofer, but in a commercial environment it would not be safe or prudent to make any assumptions about who bore responsibility for a uniquely designed, uniquely constructed and uniquely installed LNG pipe with a hairline crack. You must actually know. You cannot assume. This clearly takes additional time and money, and it is uncovering these sorts of mysteries, akin to a detective, archaeologist or deep sea treasure diver, which often places the greatest burden on a commercial construction litigator’s time.
Therefore, just like the dusty university post-graduate toiling under the hot coastal Italian sun, commercial construction lawyers must be good at, relish the opportunity to and enjoy putting the pieces of the jigsaw together and getting to the bottom of precise facts. Again, to be sure, not everyone has the patience or interest to unscramble the fine details of why an LNG pipe was cracked, or an oil-rig project delayed, or pinpoint the multifactorial reasons why a tunnel ran over budget. But for those professionals with the required temperament, who are willing to invest the time and mental energy to do so, commercial construction disputes are a perfect fit.
Interestingly, and somewhat counterintuitively, the other feature of commercial disputes which delineates it from domestic construction disputes is the primacy of the terms of the contract, and the paucity of other (some would say ‘pesky’) legislation which regulates the outcome of the dispute (with the notable exception in the Australian context of the Australian Consumer Law, putting aside its obvious misnomer in this commercial realm). While domestic building work is heavily legislated, many of the laws which apply to domestic building work have far less, even no, applicability to larger commercial constructions. Parties can therefore often have confidence that the outcome of their dispute will depend closely on (1) the precise facts of the case and (2) the precise wording of the construction contract. This is not to belie the complexity of managing the interaction between the former factor and the later. But the comparative absence of intervening legislation does lend commercial construction litigation a more intellectually ‘streamlined’ structure than its domestic litigation counterpart. This is evident in the fact that lawyers can, and often do, act outside their “home jurisdiction” in commercial construction disputes. It all just depends on the facts and the contract, and if you can work well with these two factors there’s no reason you cannot take the show on the international road. However, on the other hand, an expert in domestic construction litigation in (say) Idaho would not, and should not, presume that such experience equips them to competently tackle domestic construction litigation in Northern Ireland, provincial France or outback Queensland. The legislative framework and accumulated norms of how “this jurisdiction does it” will be entirely different to their parochial Idahoan experience, leaving them ill-equipped to work competently outside of their home jurisdiction.
The difference between commercial and domestic litigators continue. While the domestic litigator might be willing to, indeed capable of, firing a pretty good answer from the hip, this would be ineffective and even reckless for a commercial construction litigator. Before they can give a considered and professional answer, they need to spend time getting to know this project and this contract — a process that cannot be bypassed. So while it may speciously appear that the domestic litigator, with their ready answer based on hundreds of similar cases, is more competent than the commercial litigator who asks for more information and more time to consider, this would be a shallow analysis, and misleading. It’s not a difference in competence, it’s a reflection that domestic and commercial litigators need different ingredients to form a valid legal opinion — the domestic litigator needs experience in similar cases, the commercial litigator (because no similar cases are available) needs time to get to know the ins and outs of thiscase.
Discussion
From the discussion above we can see that while all four types of lawyers could, and do, call themselves construction lawyers, they are all very different species, and attract different types of lawyers.
At one level, some of these distinctions are obvious. Of course, those who prefer deal making will be attracted to front end work, while those with a combative “Atticus Finch” streak will tend towards litigious work. This is a patent dichotomy to even the most casual observer in the field.
However a more subtle, less commonly recognised, but equally important distinction also exists between those who enjoy domestic work and those who prefer commercial construction. This is not simply a matter of saying the commercial work has larger budgets and interesting buildings, and is therefore more glamorous (and better). It is about recognising that some lawyers will be inherently attracted to domestic work, while others will prefer the realities which make commercial work what it is.
For those lawyers who enjoy variety, staying at a high level, and accumulating experience and knowledge through the accumulation of hundreds of construction clients, domestic construction work (whether front end or back end) will suit.
On the other hand, those lawyers who enjoy going deep into the specifics of a problem and exercising judgement, creativity and problem-solving (not simply dispensing pre-packaged solutions based on historical best practice) will most likely gravitate towards commercial construction work, with its deeper budgets and greater need for never-before implemented solution. Such lawyers will need to be able to tolerate, or even relish, greater uncertainty in their work. There are very few off the shelf solutions, and a fair degree of cautious “making it up as you go along” will be required. You’ll rarely feel completely competent and sure of the best next step. On the other hand, the domestic lawyer can far more readily leverage accumulated experience and historical knowledge to determine, with a high degree of confidence, how to proceed in a given situation.
While most lawyers will recognise the difference between front and back end work, the “domestic” / “commercial” divide is an equally important distinction. However, it is less frequently appreciated. Lawyers think that if you work in construction law, and are (for instance) a back end lawyer, you must be able to handle any type of litigation, from a defective shed to a defective space shuttle lunch tower.
This is wrong. A good “shed” litigator will have worked on hundreds of shed cases, and will have a finely honed sense (without delving too deeply into the specifics of this case) of how to navigate the regulatory complexity and come up with an acceptable result at an acceptable price. A good “space shuttle” litigator is completely different. Previous experience with space shuttle litigation is no necessary pre-requisite (indeed, there might not be any). More important is the willingness, patience and skill to dive deeply into the specifics of this particular case, and the contract that supports it, and then (without any precedent to call on) exercise their creativity and make a best judgement about how to get the best possible result.
While these examples are exaggerations to make the general point, the point still holds. Domestic and commercial litigation are different specialities requiring different skills, and it is an error to conflate the two, or assume that competence in one realm equips the lawyer necessary for success in the adjacent realm.
Conclusion
Where does this leave us then? Each of the four quadrants represent an equally professional way of practicing as a construction lawyer, and each are as valid (and necessary) as the others. However, it is necessary to identify with some precision in which space we are operating, otherwise we risk confusion (as with my unsolicited call to be a guest speaker) about what skills and knowledge we actually offer.
Other consequences flow from a fuzzy understanding of the distinction between the four types of construction lawyer.
For instance, the education of construction lawyers could benefit from a clear understanding of the distinction. The education of construction lawyers, tends — for better or worse — to be monolithic. There are no separate subjects for each of the four identified specialties. Further, the focus tends to be on domestic construction disputes (the “negotiator”). This is understandable, because of the commonality and relatively homogeneity of domestic disputes, this is realm where a plentiful number of cases, and numerous statutory edifices reside, and hence knowledge in this space is mature, codifiable and teachable. In the commercial space, it may be true — but is not particularly examinable — to say, there is no relevant precedent, you simply have to understand the facts and the contract and use the best judgement you can. Hence, teaching focuses on domestic construction disputes, simply because there is more to tangibly teach. There is also the general law school bias towards educating disputes lawyers — the law is taught as being the ground up culmination of a long series of disputes, and students are examined on the basis a dispute has arisen and needs to be quelled by reference to how other historical litigation was resolved. This might produce good litigators, but it is largely useless at helping a student understand how a contract should be drafted from scratch, what terms are important and which are less, and how the delicate negotiation dance whereby you are seeking maximum value for your client without offending the other side and scuppering the deal should be handled. Such skills are usually taught as part of an apprenticeship with a more experienced lawyer, rather than by a university professor. There is obviously room to rebalance this educational equation by not just teaching the cases and statues (useful for a back end lawyer) but the art and science of construction contract negotiation, and bring some academic rigour to the education of the next generation of “front end” lawyers. Because after all, without the front end lawyers to draft the contract in the first place and get the project started, there would be no disputes for the back end lawyers to resolve. Universities, if they are to maintain relevance to the real world, must be mindful not to put the intellectual cart before the horse, and ensure that a balanced curriculum prevails which is capable of producing all four types of construction lawyer.
But in recognising this, we are empowered, and it we are equipped to deliberately expand the curriculum to cover the other quadrants as well.
Management of our law firms is also assisted by a clear understanding of what quadrant we operate in. Most firms manage to appropriately delineate and manage front end and back end construction lawyers, but fewer identify the fundamental difference between domestic and commercial practitioners, and group them accordingly. Yet as we have seen it is a mistake to confuse the skillset of the two. They are two very different types of lawyers. High-level, shallow investigation, quick experience-based solutions for a modest price (domestic), versus deep investigation, new creative solutions for top dollar (commercial). These are different lawyers in skills and temperament, and shouldn’t be indiscriminately confused with one another as they too often are.
Clients are also better served by identifying, and selecting, a practitioner that will best serve their needs. How can you construct a complex product, like a car, for a reasonable price? The answer of course is to adopt efficiencies of scale. The more domestic construction disputes a firm handles, the better and faster they get, and the lower the cost. Firms that rarely act in domestic commercial disputes must “start with a blank sheet of paper”, which is expensive. Clients in the market for a domestic commercial litigator should therefore be mindful of selecting a firm which will produce their product off an assembly line, rather than one which proposes on building an artisanal car for the first time, from scratch.
In short, clarity is only enhanced when we think of construction law not as an amorphous whole, but as a nested box of sub-specialities each with their own role, needs and value to bring.
About the author
Samuel J Woff is a leading commercial construction law and construction litigation specialist, advising on complex and high-stakes project and major infrastructure disputes.
Prior to launching his solo (but national) consulting practice, Samuel had more than ten years experience working in private practice at some of Australia’s largest law firms.
Copyright 2023 Samuel J Woff
