Building contracts lawyer


date 16 Aug 2019

Once, hardly anyone could link the words “lawyer” and “construction”, today it looks like a trend under the designation “construction lawyer”. However, to be honest, yesterday's trend, today it is already mainstream. Lawyers specializing in the field of construction plow open spaces of arbitration courts with enviable regularity and the proportion is straightforward: more construction - more disputes between its participants.

The reasons for the experience in specialization are also few, but the interesting thing is: how realistic is the lawyer, who represents contractors, general and not so much, and customers in arbitration courts, is oriented in construction as such and does he need a building background in any was the form? Indeed: if the dispute concerns purely technical issues, which are not so clear for the lawyer representative or the judge considering the arbitration dispute, but for the builders themselves, how can the participation of a construction lawyer help here? I will clarify: when does a lawyer become a construction lawyer and is this even possible?

In practice, before initiating a dispute or deciding to disagree with claims, the question is often left to the attorney. And if the matter is in the interpretation of one or another provision of the construction contract - this is understandable. But if the quotation rests on the essence of the construction process, its quality, execution order, and it is such that even experienced specialists (builders, designers) do not have a single solution, then how can a lawyer help? The answer is: no way. Even if this lawyer received a construction education and worked at a construction site for many years, while comprehending jurisprudence. It turns out that in such cases, an appeal to a "construction lawyer" is like a jump back from the "back to the abyss" position.

However, a considerable part of the so-called construction disputes does not represent any complicated enterprises: after the construction is completed, with all the papers signed, someone suddenly decides not to pay the bills, hence the lawsuits in the arbitration courts, lawsuits that could not be satisfied. But the dilemma mentioned above has not been removed by anyone and, apparently, cannot be removed. All applicants to arbitration construction lawyers should bear in mind that the latter are well aware that all conflicts from the texture (texture of the construction process) will be resolved during forensic examinations, where the final word will remain with the expert appointed by the court (or a group of experts).

It is they who will take responsibility to decide who is considered right, who is not. The judge, realizing that he does not understand construction and is not required to understand from him, will also blindly follow the conclusions of experts. This one comes out relatively convenient for everyone except, probably, experts appointed by the court, who, if you want to, do not want, but need to solve something, the situation. And it is beneficial to a construction lawyer who knows perfectly well that if that: all the sticks fall on the experts.

Here it is necessary to “push”. By attracting a construction lawyer to participate in the arbitration court, you can, of course, try to test his knowledge in the disputed area. Despite the fact that his conclusion will not be decisive, the client (contractor, customer) will thus be able (and, alternatively, will not be able) to see his ability, mixed with the pure knowledge of construction design standards, to see the essence of the problem, to evaluate impartial pros and cons, compare opinions, predict the assessment of the arguments, suggest how he will challenge the decision made not in favor of the client.

However, the knowledge of the building lawyer of building codes is not an essential layer in assessing his competence. Let's just say: you can study in the process. But the key factor will still be the ability to get into the brains of construction experts, preceding their possible conclusions. Knowing how this or that builder thinks, understanding how to effectively refute him, the builder, the conclusions, the lawyer is able to bring the trial at least to a stupor - neither one nor the other is right, especially if the court initially saw the weakness of someone’s position of one of the participants.

But there is no need to be a builder, that’s the “salt” - the lawyer who leads the construction dispute - he is the same as he always was - a sophist. A specialist in dialectics, painstakingly digging through papers and seeking and finding miscalculations. So what happens: all that can be hidden behind the combination of "building lawyer" - verbal balancing act?

In general, the question of the need for a construction lawyer to know the technical norms and rules is subtle. We are aware of cases when a lawyer in the field of construction has excellent knowledge in the field of construction "regulation". Being, due to professional specifics, involved in almost everything that is connected with this construction, communicating by experienced builders in one language, and what is there - almost being able to control the building process on the construction site and correctly execute the brickwork, the construction lawyer, however, he was unable to apply these norms or to interpret them so convincingly that no one, including opponents, would have doubts about the correctness of such an interpretation.

As you know, despite the detail of construction rules and standards, they continue to arise and, as evidence of the multivariance of construction as such, questions will arise what to do here or there, or with the seeming unambiguity of a rule, it, with regard to incidents, suddenly becomes ambiguous, acquires a different color and even the point. How to solve this? Here, what is sometimes referred to as art, comes into force, although in fact it is just a painstaking multi-aspect work, the result of which will not be to say that the decision is right but necessary for the principal (and it’s not so much about judicial acts as about the decision to choose here or another position).

Therefore, demand, giving rise to proposals, gives rise to complete confusion in the matter of choice. In general, this is an explosive mixture: construction and a lawyer, and at the moment when the components are connected, it becomes generally dangerous: did the building advocacy almost form into a separate institute (or building law, so that construction lawyers are not offended?). Just imagine this kneading: a lawyer who, on duty, should have some, but eloquence, cleverly juggles excerpts from building codes and rules, understands the reference points, can calculate the load, not a stranger to surveying ... what the hell! However, this is enough ... Here it is - a requirement of the era. Construction attorney ...

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