ForConstructionPros.com

Christopher M. Ernst, Esq., Contributing Writer

Too frequently, business people, such as concrete contractors, view their lawyers a necessary evil in the landscape that is the modern business world. Too often, lawyers, by the way they handle problems, as well as their clients, foster this mindset. Some narrow-minded lawyers go so far as to actively encourage it. In the end, this kind of attitude benefits no one and ultimately will be unhealthy for the business, the industry and society at large.

If business people and lawyers could work together with the betterment of business as the focus of the relationship, businesses would have a greater ability to thrive and excel rather than merely survive. To do so, however, requires a certain degree of persistence and clairvoyance on the part of the business owner. The business owner must be willing to engage an attorney in a business consultant-type role and, more importantly, must be willing to seek out the kind of attorney who would relish such an opportunity.

Finding the lawyer
A business owner often hires an attorney that he knows through some other circumstance. It could be a local social club, the golf course or poker night, but once the informal relationship is established between owner and attorney, an owner will frequently rely upon that sense of comfort to elevate the casual relationship into a business relationship. This may be the worse possible thing to do. Rather, a business owner should actively seek out leaders within both the legal and construction industry and interview them at depth. It would be easy - and comfortable - to rely upon the war stories an older attorney will recount. However, an attorney who does such a thing may well be signaling his inability to work in a novel economic model. Instead, just like a business owner would interview other management-level candidates for other positions, the owner should seek an attorney who is willing to take a business-minded approach to the representation, personalize his efforts rather than relying upon a one-size-fits-all method, and seems genuinely interested in working proactively for your business. As stated before, this may require a degree of clairvoyance, just as any interview process does. But with some diligence it can be accomplished.

The business purpose of litigation
With the new attorney in hand, the business owner should be able to sit down and analyze the legal needs of the company and ascertain exactly what needs to be done. This should be a thoughtful and thorough process that may take some time to complete. No less importantly, an analysis of all pending or threatened litigation must be done with the goal of determining how these lawsuits factor into the business goals of the company. For example, is it more prudent to quickly settle a case for nuisance value, in light of the potential precedent? If the contractor is of a sufficient size that its work is regional or even national, would handling one case in one jurisdiction in one manner have a detrimental (or potentially beneficial) effect upon another case in another jurisdiction someplace else? Is the goal of the business better served by taking a hard line stance, realizing that the cost associated with defending a case may far exceed the potential recovery or exposure in the case?

Too many attorneys simply view such pending or threatened litigation as a potential goldmine of fees, with little interest whatsoever in how the lawyer's conduct can ultimately affect the business beyond the scope of those specific lawsuits. It is incumbent upon the business owner to keep this in mind, and working with an attorney who is predisposed to do the same will help the business.