This article describes what construction lawyers do, to help you decide whether they might be worth the investment. Although they work in a relatively narrow niche, the range of services offered by construction lawyers is broader than what you might expect.
What does a construction lawyer do?
At the risk of stating the obvious, construction lawyers provide legal advice in relation to building and construction projects.
They advise different organisations at all levels of the contracting chain - including principals (property owners, developers or occupiers), head contractors and construction managers, project managers, subcontractors and trade contractors, consultants and suppliers.
Construction lawyers have specialist knowledge about construction contracts, and they will be able to advise in relation to issues that can arise out of construction contracts - for example, in relation to defects, delays, variations and payment issues.
In short, a construction lawyer will be able to help you work through any issue that arises out of a construction project.
How do construction lawyers specialise?
Within the field of construction lawyers, you will find that some construction lawyers are more specialised than others.
For example, you will find individual lawyers will only provide advice on:
- particular types of construction project (eg infrastructure projects, public private partnerships, residential projects, strata projects, commercial projects etc);
- contract formation (and these lawyers are typically known as 'front-end' lawyers); or
- disputes (and these lawyers are typically known as 'back-end' lawyers).
You will also find lawyers who work across most areas, and advise most types of organisation, but who may not have the same depth of knowledge in certain areas as someone more specialised. Working out how much specialist knowledge you might need is key to finding the right lawyer, as we explain in more detail here.
Most construction lawyers will have at least some working knowledge in areas outside pure construction contracting, but will not necessarily be experts in those fields. Examples of related areas include:
- property transactions (eg buying, selling, subdividing or leasing real estate),
- work health and safety, including the handling of safety incidents or dealing with safety breaches,
- industrial relations issues, including the negotiation of enterprise agreements and the handling of industrial relations disputes, and
- insurance claims and disputes.
The balance of this article describes some of the services that are typically offered by construction lawyers.
Construction lawyers can provide valuable advice at the time of setting up a new project. This is often referred to as 'front-end' advice.
For principals (ie property owners, developers, occupiers etc), this includes advice around:
- how best to structure a project;
- which type(s) of contract are likely to be most suitable;
- preparing conditions of tender;
- preparing a form of contract;
- considering and responding to contract clarifications received from tenderers;
- letters of intent, letters of appointment and early works contracts; and
- amending and finalising the form of contract.
For contractors, consultants and suppliers, these services include:
- reviewing contracts and identifying key risk areas (and you can read about the cost of contract reviews here);
- preparing tender qualifications;
- advising on, and negotiating, the terms of letters of intent, letters of appointment and early works engagements;
- advising on ancillary project documents, such as third party access deeds and tripartite financing agreements; and
- negotiating, drafting and advising on contract amendments.
At Turtons, we provide all of these services, and you can read more about this here.
When construction lawyers refer to 'back-end' legal support, they are typically referring to advice relating to construction disputes or situations that could lead to a dispute. The most common issues that are the subject of dispute are disputes over defects, delays and payment (particularly in relation to variations).
Construction lawyers who offer back-end support will have experience in various dispute resolution processes, the main ones being mediation, arbitration, expert determination and litigation. They will be able to provide you with advice on how best to go about resolving your particular issue.
They will normally have expertise in security of payment issues, and be able to assist you in making or defending applications under the security of payment legislation.
As we explain in more detail here, where you are facing a potential dispute, the earlier you engage a construction lawyer, the more value you are likely to get from them.
Also be aware that although claims consultants can also provide project support, the role they play is quite different. You can read more about the differences between construction lawyers and claims consultants here.
Templates, Systems & Training
By their very nature, construction contracts involve a fair amount of administration and management.
This begins from contract signing, continues through claims administration (for instance, progress claims, variations and EOT claims), and does not end until after the defects liability has been completed.
Construction lawyers offer support throughout this process, both through systems development and training. This support is sometimes project-specific, and sometimes it is not (for example, where they help develop company-wide templates, systems or training).
The idea behind this type of support is to ensure you are equipped to deal with any potential issue that might arise on a project, well before it occurs.
Examples of the support that a construction lawyer can offer in this area include:
- preparing document templates (eg requests for tender, forms of contract, standard tender clarifications, letters of acceptance, contract administration flowcharts and forms);
- designing internal systems for specific projects or processes (eg contract entry, variation administration, progress claims, progress certificates and payment);
- training, such as contract entry training, contract management training, general contracting training or training on specific issues that commonly arise on construction projects. (For some examples of free construction contract training, visit our resources page here.)
These types of services are effectively an investment (not unlike insurance). They require a conscious decision by you to engage a lawyer, even though you might not be facing any current issues on any of your projects.
The idea behind these types of services is to put you in the best possible position to avoid problems, or at least minimise their impact, should anything go awry.
If you are thinking about engaging a construction lawyer, but you're not sure if, how or when to proceed, please don't hesitate to contact me. I would be more than happy to help point you in the right direction.