Why construction law?

I am writing this article for law student members and young lawyers who may be considering practicing in the field of construction law. If you are interested in problem solving, or if you are interested in the various legal dynamics that factor in for the design, construction, and claim stages of a construction project, then you should consider a practice in the field of construction law. The field of construction law offers a smorgasbord of practices and practice issues. There is never a dull moment.

Construction law is a field that brings in to play many legal disciplines. You certainly will need to master many principles of contract law for the relationship and obligations of the parties involved in a construction project are most assuredly set out in written contracts. To the extent that they are not, then you will be dabbling in the legal principles bearing upon implied conditions, oral contracts, unjust enrichment, or quasi-contracts. Sometimes what looks like a construction contract issue is in fact a sale of goods issue, as when, for example, the construction contractor is purchasing equipment from a supplier. For those whose interest is tort law, you will find that design professionals owe duties of care to those who they interact with and their liability is negligence based. And, of course, you will oftentimes find yourself wrestling with a Moorman doctrine issue and its exceptions.

If you like transactional work, you can draft contracts for owners, design professionals, general contractors, subcontractor or suppliers. Or you can wrestle with privately available form contracts from AIA, EJCDC, AGC, or Consensus Docs. You can also counsel your client through the various public body contracts with their voluminous standard conditions such as those issued by the Illinois Department of Transportation or the Illinois Capital Development Board. You may also find yourself assisting your clients in Public Private Partnership (“P3”) construction projects.

There are also numerous statutory codes that come into play in the construction field. Some if you like dealing with statutory based matters, the field of construction law has a lot to offer. For example, there is the Illinois Mechanics Lien Act; the Public Construction Bond Act; the various prompt payment acts; the Prevailing Wage Act; the Illinois Home Repair and Remodeling Act, the Illinois Procurement Code, the Steel Products Procurement Act, the Illinois Residential Building Code Act; and the Illinois Building and Construction Contract Act.

Perhaps you like to prosecute or defend personal injury cases. Well, many arise out of construction projects. You may need to understand the dynamics of construction law in order to understand the circumstances of the project in which the injury arose. That may lead you into the labyrinth of the Construction Contract Indemnification for Negligence Act or of OSHA regulations.

Perhaps you like insurance based issues. Construction law offers that to you also. From coverage issues to what constitutes an insurable “occurrence” to additional insured rights and obligations. There is also the transaction side of drafting insurance provisions for construction contracts.

In the area of public construction contracts, there are issues relating to the granting, modifying, suspension or termination of prequalification of contractors; and to bid disputes.

Since construction projects are built on real estate, you may find yourself working with real estate developers in helping them plan their real estate development and construction projects. So, you will get your feet wet with real estate law. The same is true for condominium projects.

Oftentimes construction projects have federal funding and thus federal laws regarding Davis Bacon requirements and federal Disadvantaged/Minority/Female enterprise contract requirements will be implicated. With federally assisted procurement you may find yourself practicing under federal acquisition laws and before federal contract boards.

Construction claims take on a myriad of scenarios, all of which require the practitioner to bring their legal expertise to bear. Claims could be simple, like whether the work at issue is or is not an extra. There are delay claim issues that require you to master and apply the no-damage-for-delay doctrine and its exceptions. There are claim issues that are based on complex scheduling issues. There are claims that require that you wrestle with consequential damage waivers. There can be liquidated damage claims.

For those interested in alternative dispute resolution, construction issues often time end up in arbitration and mediation forums. Here you get to apply your expertise under not only the Illinois Arbitration Act and the Illinois Mediation Act, but also the Federal Arbitration Act.

Most interesting of all is that you will learn about many, many things that you may never have dealt with before, such as: roof flashing; wet well sump designs; concrete testing; roller compacted concrete; cleanrooms; and Disadvantaged/Minority/Female enterprise contract goals and set asides.

A construction law practice will often have you working with expert witnesses in many fields.

If labor law is your interest, there are interesting labor law issues related to construction projects, such as jurisdictional disputes; gating systems; grievances; project labor agreements; and picketing.

For projects requiring performance of payment bonds, you will enter the mystical world of suretyship.

Lastly, and unfortunately, construction law can lead you at times into the fields of state and federal civil and criminal false claims, state and federal mail and wire fraud claims; and other violations of criminal laws that deal with construction related issues. See for example Article 33 of the Illinois Criminal Code.

The satisfaction that comes with a construction practice can be gratifying. You may have assisted in bringing a project to fruition. You may have assisted your client in navigating a difficult claim. You may have assisted in negotiating a resolution to a difficult dispute that minimizes the harm to your client and preserves future business relations for your client. You get to meet some very smart and enjoyable people who toil in the construction industry and make our lives better. And you can one day look in to a mirror and say that you can now understand how to read a set of plans and specifications.

I hope that I have whetted your interest to delve into the field of construction law. Good luck and I hope to see you as a member of the ISBA Construction Law Section Council. 