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Construction Law

By Randy B. Birch

When I was a young whippersnapper (law school grad), I did not know there was an area of legal work referred to as “construction law.” Indeed, although I had worked construction throughout my high school and college careers, I had no idea there were lawyers who did construction law. I first became aware of it when I was looking for work after about two years of being a sole practitioner. There was a small construction law firm looking for an attorney with construction experience. I thought, “Hey! I am that guy,” so I applied, got the job, and began working for a construction law firm.

Although others might argue with me, it has been my experience that working in construction law means I get to help contractors in many aspects of their lives. At one end of the spectrum, I assist clients with contract document drafting for multimillion-dollar projects, or pursuing claims for delays and damages that may total millions of dollars. At the other end of the spectrum, I may help contractors with traffic violations and divorces for their employees. More often than not, my practice consists of helping suppliers and subcontractors collect money they are owed for work performed. As a result, I must know mechanics’ lien laws, payment bond laws, and how to use those and other remedies for the protection of my clients’ financial interests.

As you can probably tell, my definition of the field of “construction law” is very broad. In its purest form, however, it is primarily a sub-specialty of contract law, with a heavy dose of litigation. As with most areas of the law, it is good to have a background in the area in which you are going to work. In my current firm, we have an attorney who graduated with a degree in construction management and is a licensed general contractor, another who worked for an engineering firm, another who is a journeyman plumber, and I, as an ironworker, am the only one of the group who paid union dues!

As may be expected, geographical locations with lots of construction are areas where there is a greater need for construction attorneys. I currently practice in Utah, where the economy is robust and construction is booming. I am confident that there is a need for construction attorneys in Arizona, Nevada, and other areas of the Western and Southwestern United States where construction is strong. It is important to note, however, that although the economy is robust, most contractors do not take the time to pursue collections, claims, or other such issues while the working is good. As a result, work for our firm typically picks up in the fall as construction work slows down owing to weather and the commencement of fewer projects. The same thing happens when the economy slows—money gets tighter and contractors then want to pursue claims that they previously had ignored.

There are drawbacks to construction litigation—it tends to be very document intensive. It is not unusual for construction disputes to involve several thousands, and sometimes hundreds of thousands, of documents. A couple of years ago I was involved in a case that finally settled after three months of trial. There was a “deposition library” that consisted of six banker’s boxes full of depositions. Although, with current technology, the amount of paper may be less, the amount of information that the attorney needs to sort through, categorize, and be familiar with is actually increasing.

Another real concern is that many contractors do not seek out legal help until they are in deep financial trouble. At a construction litigation seminar I attended a few years ago, a speaker asked, “Where do we get our clients?” My response, which garnered more than a few chuckles and knowing nods, was “Bankruptcy Court!” As with all humor, there is a significant amount of truth in my response.

For me the best part of being in construction law is that I work in an industry that interests me, in which my extended family works (most of my family works in the construction trades), in which I feel comfortable, and that I enjoy. In this day and age, when so many attorneys despise what they do, I feel pretty lucky.

Randy B. Birch has practiced construction and commercial litigation for more than 20 years and is a shareholder in Bostwick & Price, P.C., in Salt Lake City, Utah. He can be reached at or http://utahconstruction.blogspot.com.

Copyright 2007

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