Legal Consultation Services for the Construction Industry

Not interested in a conventional construction law firm? Neither are we. The Law Offices of Daniel J. Knight, a Professional Law Corporation is committed to brining both legal expertise and construction technical experience to your construction law matter. 

Experience in dress shoes and boots.

“The best option for you is not always a legal fix. We know what tools to use for specific situations that will help solve the problem and help prevent the problem from occurring in the future. Before I became a construction lawyer I owned a construction company. I know how the construction world works and its relationship with the legal world”.

Dan Knight  

A life spent in the California Construction Industry.

Growing up in the trades in a family owned construction business I learned first hand the ins and outs of the building industry in California. After obtaining my Contactors license, I opened and ran my own construction firm for 14 years focusing on hard to solve construction problems and expert witness engagements. Soon after obtaining my contractors license I met my wife, were married and began our family having three children. After returning to school and becoming a lawyer our firm now focuses on construction law, construction expert witness engagements, and construction defect litigation.  

Lifelong Construction Industry Involvement

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Services

Building documents are the blueprint for the business side of the construction industry. They use written language and symbols to communicate to all the trades exactly how the different systems and parts are to be assembled into the final project. It takes special training and experience to know how to read building documents, and our construction law firm has that knowledge. As both a California Contractor and California Attorney CEO Dan Knight has these skills that enable deceive legal representation. 

Litigation Services 

  • Construction contracts
  • Construction Defect
  • Construction project disputes
  • Construction Torts
  • Mechanic’s liens
  • Contractors State License Board Actions
  • Fraud & Misrepresentation
  • Collections and creditor Issues
  • Mediation and arbitration
  • Department of Consumer Affairs action

 

Expert Witness Services 

  • Contractor Standard of Care Opinions 
  • Forensic Investigations 
  • De-constructive Investigations 
  • Department of Consumer Affairs actions
  • Construction project disputes
  • Contract disputes
  • Licensing
  • Mechanic’s liens

Real Estate
Services

  • Transactions and Sales
  • Conveyances
  • Title Searching 
  • Curative Title Work 
  • Forensic Investigations
  • Land use and entitlements
  • Easements 
  • Construction disputes
  • Contract disputes
  • Real Estate Licensing

Expert Witness

“An expert witness is a person engaged to give an opinion based on experience, knowledge, and expertise. The overriding duty of an expert witness is to provide independent, impartial, and unbiased evidence to the court or tribunal.”

When you engage The Law Offices of Daniel J. Knight, P.L.C., you get a contractor turned lawyer. This means that you are retaining years of experience with the hands on practical application of construction technology and practice. This practical and experiential experience allows an impartial opinion and methodology that answers difficult and at times perplexing situations. Using the scientific method and fastidious recordation techniques, reports and findings are fashioned to allow understandably and applicability to your matter.  

In retaining DK Law, P.L.C., you can rest assured that that given appropriate time and investigation that the underlying cause/s and responsibility of the issue will be discovered and reported. 

 

Expert Witness Questions and Answers

Why do I need an expert witness and what role do they serve? 

A construction expert has extensive knowledge and expertise of the construction industry. Their testimony helps to inform the trier of fact on issues related to construction law such as building delays, codes and compliance, construction costs, and construction defects. In such cases, experts discuss factors such as the building process, construction contracts, financing, bonds and insurance, construction management, mechanic’s liens, land use and zoning, licensing, regulatory compliance, and government permits. The building process involves everything from bidding on a real estate development project and negotiating a contract, to attaining building permits and disputing title claims. Construction experts explain industry standards and terms to the trier of fact.

With so much at stake and with the various sophisticated methods of construction used in various construction industries, it’s not surprising that experts would play a prominent role. The plaintiff(s) will have a team of experts that is matched by the defense attorneys and these experts are typically used to:

  • describe the defect;
  • determine its cause; and
  • propose a fix.

 

A legal claim arising from a construction project may involve contract law, torts, and property law. For example, the lawsuit could be based on a breach of contract involving a dispute about contract performance or cost of the work or an appeal of a zoning board’s building permit denial. This type or legal disputes and others call for scientific testimony from a construction expert to inform the case decision-makers.

 

Who is Qualified to Testify as a Construction Expert Witness? 

A construction expert is someone with extensive knowledge and expertise of the construction industry. They can discuss and describe industry standards, technical language, and complex issues to the trier of fact. They must be well-versed and up-to-date on the methodologies, processes, and materials used in the case at hand. This is especially important as new technologies and processes are constantly being introduced and improved on. Depending on the facts of the case, it may also be important to hire a specialist with expertise in a particular field.

A construction expert may consult, provide reports, and testify on various aspects of construction, such as:

  • Building code compliance
  • Construction defects
  • Construction management
  • Cost estimates
  • Construction safety 
  • Forensic investigations
  • Governmental regulations
  • Infrastructure projects
  • Price discrepancies
  • Quality issues
  • Standards of care
  • Structural engineering 
  • Work zone safety

 

Testimony Provided by a Construction Expert Witness

Expert witness testimony can be very effective in strengthening a legal argument, persuading the trier of fact, and ultimately attaining a winning disposition. Here are some examples in general terms. 

 

    Standard of Care

When a legal dispute centers on assigning responsibility for an accident or mistake, a construction expert testifies on the standard of care. The expert may opine on both the explicit and implicit warranties and duties of a construction contract and project plan. For example, a construction contract calling for the building of development, the contract may explicitly warrant the funding for the project. It may also implicitly warrant the comprehensiveness and accuracy of the design plans and specifications. A construction expert can also discuss standard industry warranties, such as attainment of all proper and necessary licenses, the quality, appropriateness and completion of the construction project, good workmanship, and the habitability of the structure. In disputes over such matters, experts provides testimony opining on whether a party in question met the level of responsibility associated with their job description and duties.

Understanding the standard care in construction cases is important for assigning liability. A construction expert can speak to what signify as acceptable workplace conditions and quality standards for a completed construction project. Their testimony will inform the jury deciding which party was at fault.

         Defective Construction: Opinions. 

In addition, experts help by rendering opinions having to do with whether the work completed is up to the standard of workmanship that would be expected. Experts allow those people that “know” good work to offer opinions on the fitness of thew work and the methods used to complete it. Whether the work was customary in the industry and how it will last in the future. 

An example, a residential driveway is poured in stamped concrete, the colors don’t quite match and the texture is off. You think “is this normal”, an expert would be able to come in and investigate the problem and outline possible causes. An expert might find that the colorant in one of the loads of concrete was off and in another section of the driveway that the finishing crew waited too long to apply the texture causing it to not make as deep an impression causing the texture not to match. 

Experts often put to words what a clinet’s gut feeling tells them. They do this is a scientific and provable format that allows a judge and jury or arbitrator or mediator to understand the concept and process. 

     Scheduling Delays

Many construction law cases brought to court center on delays in the construction process where the project cannot be completed on time. Delays in construction could cost the client substantial amounts of money, especially where delays prevent their new business or operation from opening as planned. These delays might stem from any number of issues. For example, a delay could be caused by a third party unable to deliver building materials as promised, forces of nature such as floods and snow, or a sub-contractor suddenly filing for bankruptcy.

 

In bringing a cause of action for costs incurred as a result of a construction delay, the plaintiff-contractor must meet the heavy burden of proof. As stated in George Sollitt Constr. Co. v. U.S., 64 Fed. Cl. 229, 240 (2005), the contractor must show that the breaching party’s actions affected activities “on the critical path of the contractor’s performance of the contract.”. It follows that disruption of an activity not on the critical path does not hinder the completion of the project. For instance, an activity “on the critical path” might be excavating and preparing the building site, before the foundation for the home can be laid. A construction expert who specializes in such details of the building process can explain how a construction project is scheduled and which was party – or parties – was or is at fault.

 

     Estimates

One of the more contentious issues associated with construction contract litigation is, of course, the price one must pay for a certain construction job. 

The complexity of such issues is compounded by the fact that there are multiple contracts and parties involved with a project that might contain divergent terms or monetary penalties. The general contractor relies heavily on the estimates provided by sub-contractors and their services during the building process. Sub-contractors include speciality trades and consultants. The estimates from the sub-contractors are computed to find the general-contractors overall bid for a project. However, litigation can arise in situations where there have been computing mistakes. Such mistakes affect the bid, resulting in either having to rescind a bid, or scramble to find a cheaper alternative. Thus, when a subcontractor makes a mistake, the general will try and enforce the terms of the sub-bid, often arguing the legal theory of promissory estoppel.

In the seminal sub-bid case, Drennan v. Star Paving Co., 51 Cal. 2d 409 (1958), the Supreme Court of California considered the legal obligations of a sub-contractor submitting a bid to a general. In that case, the defendant paver phoned the plaintiff general-contractor the evening before the general’s bid was due and offered a sub-bid. The general was ultimately awarded the project and chose the defendant for the paving work as he had provided the lowest estimate. However, the defendant then informed the plaintiff that he had made a mistake in computing his bid and he couldn’t possibly do the work for less than twice the original bid.

At trial, the defendant argued that he was entitled to rescind his offer because it was clearly a mistake. The court disagreed noting that this case differed from those where the sub-bids were so low it should have been obvious to the general that the bid was incorrect. The defendant then contended that his sub-bid constituted a revocable offer. Meanwhile, the plaintiff argued that it was customary in the area for generals to receive the bids of subs by telephone on the day set for bidding for a project and to rely on them in computing their own bids. The court again sided with the plaintiff, holding that “Defendant’s offer constituted a promise to perform on such conditions as were stated expressly or by implication therein . . . [and] had reason to expect that if its bid proved the lowest it would be used by the plaintiff.”

In such a case, testimony by a construction expert can help to sway the judge and jury. The expert would be especially helpful in elaborating on customary practices in the bidding process. Such as whether a bid received by telephone is binding on the sub-contractor, and explaining what bid signifies a computing mistake such that a general contractor would reasonably believe it to be erroneous.

 

Litigation Services

Lawyers you’ll swear by. Not at.

Legal representation focused on construction law.  

Fighting or filing a lawsuit without the help of a lawyer is generally a bad idea. Sure, a lawyer might get expensive – but losing the suit and/or failing to minimize exposure will cost a lot more. 

If you are sued whether rightfully or wrongfully, going it alone can cause you to overlook cross-claims and other claims along with defenses you may have, causing you to compromise your rights and increasing your exposure needlessly.  

Lawyers are counselors at law and should offer impartial analysis to guide your decision making. We offer a practice focusing on construction law and associated legal matters. By focusing on construction we leverage our areas of professional experience and knowledge sets. 

By not taking just any case that “walks in the door” and having an area of focus we maintain our availability for construction related matters. We accept those engagements where we offer the most value, and would be happy to refer you to another attorney if we cannot.  

 Daniel Knight, having been a contractor turned attorney, offers unique insight into construction law matters having experienced them as a: contractor, homeowner, project manager, expert witness and attorney. With this insight, solutions can be crafted and implemented in an effort to resolve the matter with the best possible outcome.   

Litigation Questions and Answers

We can assist in a wide variety of ways.  There are a ton of different reasons these lawyers might be needed, but workmanship issues and payment disputes are two of the most common areas of construction law.

 

 

 

How Do I Know If I Need to Hire an Attorney to Solve a Dispute?

 

 

 

Unfortunately, that’s a hard question to answer. Whether or not a construction attorney is needed will vary greatly depending on the specific factual circumstances. Still, there are general principles that apply.

 

 

 

Let’s take a look at some common scenarios.

 

 

 

1 Do I Need a Construction Attorney to go to Court?

 

 

 

Everyone has the right to represent themselves in court. That’s a basic tenant of law in the United States. However, many construction businesses aren’t sole proprietorships. Meaning, most of the construction companies providing construction work won’t be doing it as themselves, the individual, in the eyes of the law.

 

 

 

Whether it’s an LLC, an incorporated company, an LLP, or something else – most organizational structures that aren’t a sole proprietorship will require representation in order to appear in court. That’s true even for principals operating their business as some other entity (like an LLC). So, in the majority of cases, a construction lawyer will be needed in order to go to court in a construction dispute.

 

 

 

For those that are entitled to represent themselves in court, often, it’s still a bad idea. There’s a mountain of literature out there proving that legally representing yourself in court is a bad idea in most instances. Lawyers are experts at their trade, and there’s a reason they get paid to do what they do. 

 

 

 

 

 

 

 

2. Are Construction Attorneys Needed for Small Claims Court?

 

 

 

Small claims court is unique. It’s specifically designed to be a faster, less expensive, and overall more efficient version of traditional litigation. Plus, it’s designed so that lawyers aren’t really needed in the same way they’re needed in regular litigation. However, the same rule applies as above. Individuals (or sole proprietors) can represent themselves in court, but other types of entity must be represented.

 

 

 

A lien or other real property action belongs in “superior court” (regular court) and not in small claims court, as do most other construction-related claims and issues.

 

 

 

Do All Construction Payment Disputes Require an Attorney?

 

 

 

I’m afraid you might not like this answer either, but, it depends.

 

 

 

Leveraging Liens, Bonds, and Potential Legal Claims May Not Require a Lawyer

 

 

 

Not every construction payment dispute will require the use of an attorney. Every California’s mechanics lien and bond claim laws can be leveraged without the use of an attorney. Even when it comes to actually filing a mechanics lien, or a bond claim – very typically, a claimant can do that without the use of an attorney. Of course, when it comes to enforcing these claims, a construction attorney will very likely be necessary – and it will  be a good idea to have a lawyer involved when proceeding with an enforcement action of either a lien claim or a bond claim.

 

 

 

Unlike lien and bond claims, prompt payment and retainage actions will very typically require some form of legal action after the initial claim is made. You probably need an attorney, and you should definitely hire one if you find yourself in this situation. However, like lien and bond claims, there is an opportunity to leverage these claims before taking it to the courts. Construction payment issues can be severe – so the threat of a claim will always carry some weight. When a letter demanding payment is coupled threat of legal action and sent by a construction lawyer, often, the dispute can be resolved before legal action becomes necessary.

 

 

 

If Legal Threats Dont’s Work, then Legal Action (and Lawyers) May be Necessary

 

 

 

While the above disputes are specific for the construction industry, other legal claims – like a breach of contract, unjust enrichment, quantum emirate, interference with an economic relationship and countless more – claims must be made in a court. These claims may also be leveraged (with or without a lawyer – but a lawyer would help!) in an attempt to resolve the dispute without litigation. However, the threat of litigation won’t be enough to do the trick every time – and if suit must be filed, an attorney is typically necessary and advised.

 

 

 

Regardless of whether an attorney’s help is required, the guidance of a construction lawyer will make this process more easily navigable. Some parties are advanced enough in their knowledge that they choose to only use a construction lawyer for specific questions. 

 

 

 

Should a Construction Contract be Reviewed by a Lawyer Before Signing?

 

 

 

YES! In fact, this is as close to a no-brainer as it gets.

 

 

 

It’s common for contractors, subs, suppliers, or other trades to fall in love with one contract and use it on every job. This is generally a good practice as it allows a familiar contract to be used and one that is also familiar to your counsel. Using the same contract is the best way to ensure familiarity with the terms of the agreement. Still, prior to adopting a contract of choice, it’s wise to have it reviewed by a construction lawyer regrading a construction agreement. They will be able to assess the strengths and weaknesses of the agreement, spot potential points of contention, and help mitigate potential liabilities.

 

 

 

Even if a party will be using a contract form they’re unfamiliar with, it’s always a good idea to have the agreement reviewed by a construction attorney before signing the dotted line. It’s not uncommon for construction contracts to contain troublesome clauses that shift risk, create an inordinate amount of liability, or consent to less-than-ideal dispute resolution terms. Construction lawyers are experts at deciphering contracts, and they will be able to help construction businesses avoid potential pitfalls. In addition, construction lawyers follow the law along with its changes and different interpretations. 

 

It is wise to have construction contracts reviewed on a regular basis in order to make sure they are current with today’s law. Many people involved with construction agreements find out too late, that the contract that was good when they first started using it is no longer enforceable as written as the law has progressed and morphed since it was originally drafted. 

 

 

 

What Are Some Additional Circumstances Where You Might Need a Construction Lawyer?

  

We’ve described a number of different scenarios where consulting a construction lawyer would be helpful (if not mandatory). Still, let’s take a rapid-fire look at a few common scenarios that require the touch of a construction lawyer.

 

 By and large, the best way to utilize a construction lawyer is to avoid legal issues before they pop up. Even when a construction lawyer is reactively brought in – doing so sooner than later can help keep a dispute under control.

 

 

 

Parties being sued.

  

Fighting a lawsuit without the help of a lawyer is generally a bad idea. Sure, a lawyer might get expensive – but losing the suit (and failing to minimize exposure) will cost a lot more. Not to mention, they might be able to identify cross-claims to work in your favor along with identifying other defenses and strategies for mitigating exposures.

 

 

 

Parties suing someone else.

 

 

Same as above! Filing and fighting a legal battle without the help of legal experts is generally a bad idea. Engaging in a lawsuit without the representation of a lawyer might not even be legally possible – and it’s definitely not the best option. As above, when you are trying to be made whole you want to know that every case of action and beneficial strategy is considered before filing your papers. 

 

 

 

Parties under the threat of suit.

  

This one is a little less cut and dry. Not every threat of a lawsuit will require consulting a construction lawyer. However, with the help of a lawyer, it’s much easier to decipher which threats are legitimate and with merit from those that are simply cohesive threats. By consulting a lawyer, a construction business or party to a construction agreement will be able to better assess potential liabilities.

 

 

 

“I don’t know how to proceed, but I need to get paid.”

 When payments aren’t coming, construction businesses have a number of tools at their disposal. Deciding which ones are the most appropriate, most feasible, and most likely to result in payment will be much easier with the help of a construction lawyer. Attorneys are meant to be impartial analyzers of your case in order to help you decide how to proceed. 

 

 

 

Claims that construction is defective. 

 

Claims of defective construction are one of the biggest drivers of construction litigation. Regardless of what side a party is on – whether they’re claiming a defect is present or defending against a claim of defective work – construction lawyers will help to provide clarity to the situation and might actually help to avoid litigation. They’ll be able to decipher the relevant laws and contractual duties in order to uncover who, if anyone, is at fault and who might be liable.

 

IN addition to legal claims, construction lawyers are also familiar with the procedure required to bring construction defect claims. An example, is SB 800 or the “Right to Repair Act”. With this act there are very strict deadlines that parties must comply with in order to even bring their case. This act also acts as a procedural method for parties to resolve their disputes before litigation is required; if done right. 

 

 

 

Terminating a contract, or taking some other action set out in the agreement.

 

Want to exercise a feature of the contract, like a termination clause or an escalation clause? A contract might provide for the ability to take an action like a termination or a price escalation – but proceeding without caution could actually result in liability. Before exercising contractual options, it’s a good idea to talk to a lawyer about how exactly that should be done and some potential issues that might arise. Whether that’s before the agreement is signed or before some action will be taken, the guidance of a construction lawyer is invaluable.

 

The law provides for procedural safeguards especially when there are actions like terminating contracts that will have far reaching and permenant consequences. It is important to not only understand what you are entitled to do, but, how you are to do it. 

 

 

If I Need a Lawyer, What Should I Do to Help or Prepare?

  

  • Be organized. Have all of your paperwork organized and readily accessible.
  • Document everything. Get your contracts, change orders, and other important documents in writing and signed. Have backup paperwork for anything that’s related to the dispute.
  • Follow your contracts to the letter and send any required contract notices. Following your contract to the letter doesn’t give a potential legal opponent much room to maneuver. There are times when a contract is improper and you need the advice of a lawyer to implement a strategy to terminate it. 
  • Do what  you can to avoid disputes. This one might seem a little Pollyanna, but it’s usually easier – and less expensive! – to avoid a problem altogether than to try to smooth out a problem after it’s already happened.
  • For payment issues, leverage your lien rights. Send preliminary notices and other notices needed for liens if a payment issue develops. Lien rights are just that – rights. They’re there to make sure folks just like you get paid the money they’ve earned. Don’t be shy about leveraging your rights!

 

 

Real Estate Services

If it is land or things connected to it, we provide insight and expertise. 

In order to understand real estate you have to understand history and were our American system of law comes from. In addition, you must understand how property is owned in the historical context when overlaid with the California community property system. If you are needing to sell your property we can assist you. If you need a title document drafted or a defect in the title documents cured we can also help you. Our am is to be able to fill in the gaps were a real estate agent or broker may be out of their depth or not able to advise you as to legal effects of a transaction. Brokers and agents primary goal is to sell real estate, whereas our primary goal is to give you solid legal advice and assist you in your legal and property objectives. 

If you have already been involved in a real estate event that has gone sour, we are available to zealously and aggressively protect your intreats, or like a fly fisherman gently places the fly on stream, we can also delicately advance your goals. Like Bruce Lee said “…water can flow or it can crash, be water…”.  

 

Real Estate Questions and Answers

Our real estate attorneys can assist with all residential and commercial real estate matters from purchase to sale and beyond, including:

Do I have to hire a lawyer for California real estate transactions?

california real estate lawyerIt is not always necessary to retain a real estate lawyer in California, and most real estate transactions are finalized without any attorney involvement. Remember though, that a broker or real estate agent does not have the same ethical obligations as a licensed attorney. Per California Bar Formal Opinion NO. 1982-69, an attorney must meet the higher etical obligations of an Attorney, even when operating in the role of a dual licensee as a real estate broker. Therefore, non-lawyer participants in a real estate action may not always be looking out for the interests of a buyer or seller. But an experienced real estate attorney has only your best interests in mind, and can help you navigate the legal nuances of buying or selling your home. 

The main reason to use an experienced California real estate lawyer is to make sure that your interests in the transaction are fully protected, though not required. Real estate purchase or sale contracts are legally binding documents. Unless you fully comply with the terms stated in those documents, you could risk losing your earnest money or even being sued for breach of contract. An experienced real estate attorney will review your contracts, explain all of the terms contained therein to your full understanding, and work to ensure that all parties to the contract are meeting their obligations.

How can a real estate attorney protect me from problems with the property title?

Another reason to hire an attorney in a real estate transaction is to help you decide how to structure the title to your property. Title documents, including the deed to the house need to accurately reflect your intentions with regard to who has legal rights and obligations to the property. These issues are legal decisions and should be explained by an attorney.

When more than one person will share ownership of the property, there are two ways to take title: Tenants in Common and Joint Tenants. Owning property as Tenants in Common means that two or more people own property together but when one person dies, his interest passes to his heirs, not the surviving owner(s). Joint Tenancy means that upon the death of one of the owners, that person’s interest in the property transfers to the surviving owner(s). In California, if the deed is missing the specific language to create a Joint Tenancy, Tenants in Common is presumed. There are serious complications that can arise from having incorrect title documents so seeking the advice of an experienced California real estate lawyer before closing can eliminate costly mistakes down the road.

What kinds of problems can a California real estate lawyer prevent?

I have been called when a property is in escrow,, subject to the mortgage being approved no later than a certain deadline date. When that date passed and the mortgage still was not approved, the buyer or their agent failed to request a timely extension to secure the financing required to purchase the property. In this scenario, the seller is then free to sell the property to another buyer, or to cancel the sale. In other situations, the buyer was unable to secure the necessary financing altogether. After the contract was terminated, and the buyers attempted to get their earnest money back, they found out that it was lost because they failed to complete or extend the contingency provision of the contract.

Sometimes when the housing market is hot and properties are quick to go into escrow, buyers will waive contingencies in the hope that the seller will select their offer over competing offers. But this practice can expose the buyer to greater risks. If the  buyer’s inspection discovers a defect in the condition of the property that was not easily observable or disclosed when the contract was accepted, the buyer may decide to cancel the contract. But because the home inspection contingency was waived, the buyer’s earnest money is lost. Unless these issues are fully explained to the buyer in advance, he or she may be unaware of the legal ramifications of such decisions.

Having an experienced California real estate lawyer involved in the transaction can ensure that all contract terms are fully understood by the buyer or seller, all obligations are met, or time-sensitive provisions of the contract are extended as needed to ensure a smooth transaction takes place.

How can a California real estate attorney help sellers?

If you are considering buying or selling residential real estate and want to ensure that your legal rights are protected and obligations are met, consider safeguarding yourself by hiring an experienced California real estate lawyer.

Dan Knight

 

THE LAW OFFICES OF DANIEL J. KNIGHT A PROFESSIONAL LAW CORPORATION – LEGAL SERVICES FOR THE CONSTRUCTION INDUSTRY

 

If you are in the construction industry or interfacing with it, and need advice or legal representation, we are here to serve you.

 

Having walked in overalls, hardhats and boots into slacks, ties and courtrooms, we understand the needs of our clients because we have lived their reality and their horror stories.  

 

 

 

Litigation Questions and Answers

We can assist a wide variety of ways.  There are a ton of different reasons these lawyers might be needed, but workmanship issues and payment disputes are two of the most common areas of construction law.

How Do I Know If I Need to Hire an Attorney to Solve a Dispute?

Unfortunately, that’s a hard question to answer. Whether or not a construction attorney is needed will vary greatly depending on the specific factual circumstances. Still, there are general principles that apply.

Let’s take a look at some common scenarios.

1 Do I Need a Construction Attorney to go to Court?

This one isn’t quite cut and dry, but the answer is almost always yes.

Everyone has the right to represent themselves in court. That’s a basic tenement of law in the United States. However, most construction businesses aren’t sole proprietorships. Meaning, most of the construction companies providing construction work won’t be doing it as simply themselves, the individual, in the eyes of the law.

Whether it’s an LLC, an incorporated company, an LLP, or something else – any organizational structure that isn’t a sole proprietorship will require representation in order to appear in court. That’s true even for individuals operating their business as some other entity (like an LLC). So, in the majority of cases, a construction lawyer will be needed in order to go to court.

For those that are entitled to represent themselves in court, often, it’s still a very bad idea. There’s a mountain of literature out there proving that legally representing yourself in court is a bad idea. Lawyers are experts at their trade, and there’s a reason they get paid to do what they do.

2. Are Construction Attorneys Needed for Small Claims Court?

Small claims court is unique. It’s specifically designed to be a faster, less expensive, and overall more efficient version of traditional litigation. Plus, it’s designed so that lawyers aren’t really needed in the same way they’re needed in regular litigation. However, the same rule applies as above. Individuals (or sole proprietors) can represent themselves in court, but any other type of entity must be represented.

Also, a lien or bond enforcement action belongs in “regular court” and not in small claims court, as do most other construction-related claims and issues.

Do All Construction Payment Disputes Require an Attorney?

I’m afraid you might not like this answer either, but, it depends.

Leveraging Liens, Bonds, and Potential Legal Claims May Not Require a Lawyer

Not every construction payment dispute will require the use of an attorney. Every state’s mechanics lien and bond claim laws can be leveraged without the use of an attorney. Even when it comes to actually making a lien claim or a bond claim – very typically, a claimant can do that without the use of an attorney. Of course, when it comes to enforcing these claims, a construction attorney will almost always be necessary – and it will always be a good idea to have a lawyer involved when proceeding with an enforcement action of either a lien claim or a bond claim.

Unlike lien and bond claims, prompt payment and retainage claims will very typically require some form of legal action. If that’s the case, you probably need an attorney, and you should definitely hire one regardless. However, like lien and bond claims, there is an opportunity to leverage these claims before taking to the courts. Construction payment remedies can be extremely severe – so the threat of a claim will always carry some weight. When a letter demanding payment is coupled threat of legal action and sent by a construction lawyer, often, the dispute can be resolved before legal action becomes necessary.

If Legal Threats Dont’s Work, then Legal Action (and Lawyers) May be Necessary

While the above disputes are specific for the construction industry, other legal claims – like a breach of contract, unjust enrichment, quantum emirate, and countless more – these claims must be made in a courtroom. These claims may also be leveraged (with or without a lawyer – but a lawyer would help!) in an attempt to resolve the dispute without litigation. However, the threat of litigation won’t be enough to do the trick every time – and if suit must be filed, an attorney is typically necessary.

Regardless of whether an attorney’s help is required, the guidance of a construction lawyer will make this process more easily navigable.

Should a Construction Contract be Reviewed by a Lawyer Before Signing?

YES! In fact, this is as close to a no-brainer as it gets.

It’s common for contractors, subs, suppliers, or other trades to fall in love with one contract and use it on every job. Honestly, that’s great! Using the same contract is the best way to ensure familiarity with the terms of the agreement. Still, prior to adopting a contract of choice, it’s wise to have it reviewed by a construction lawyer. They will be able to assess the strengths and weaknesses of the agreement, spot potential points of contention, and snuff out potential liabilities.

Even if a party will be using a contract form they’re unfamiliar with, it’s always a good idea to have the agreement reviewed by a construction attorney before signing the dotted line. It’s not uncommon for construction contracts to contain troublesome clauses that shift risk, create an inordinate amount of liability, or consent to less-than-ideal dispute resolution terms. Construction lawyers are experts at deciphering contracts, and they will be able to help construction businesses avoid potential pitfalls.

What Are Some Additional Circumstances Where You Might Need a Construction Lawyer?

We’ve described a number of different scenarios in this article where consulting a construction lawyer would be helpful (if not mandatory). Still, let’s take a rapid-fire look at a few common scenarios that require the touch of a construction lawyer.

As you’ll notice, the saying “An ounce of prevention is worth a pound of the cure” applies well here. By and large, the best way to utilize a construction lawyer is to avoid legal issues before they pop up. Even when a construction lawyer is reactively brought in – doing so sooner than later can help keep a dispute under control.

Parties being sued.

Fighting a lawsuit without the help of a lawyer is a bad idea. Sure, a lawyer might get expensive – but losing the suit (and failing to minimize exposure) will cost a lot more. Not to mention, they might be able to identify cross-claims to work in your favor.

Parties suing someone else.

Same as above! Fighting a legal battle without the help of legal experts is just a bad idea. Engaging in a lawsuit without the representation of a lawyer might not even be legally possible – and it’s definitely not the best option.

Parties under the threat of suit.

This one is a little less cut and dry. Not every threat of a lawsuit will require consulting a construction lawyer. However, with the help of a lawyer, it’s much easier to decipher which threats are BS and which ones have some merit. By consulting a lawyer, a construction business will be able to better assess potential liabilities.

“I don’t know how to proceed, but I need to get paid.”

We see this all the time at the Construction Legal Center, and it’s a common position to be in working in this industry. When payments aren’t coming, construction businesses have a number of tools at their disposal. Deciding which ones are the most appropriate, most feasible, and most likely to result in payment will be much easier with the help of a construction lawyer.

There’s an injury on the job.

Both the party injured on the job and their employer will have a use for a construction lawyer in the aftermath of an onsite incident. Injury claims and workers compensation disputes can get ugly, fast. A lawyer can help to keep things on track and hopefully out of the courtroom.

Claims that construction is defective.

Claims of defective construction are one of the biggest drivers of construction litigation. Regardless of what side a party is on – whether they’re claiming a defect is present or defending against a claim of defective work – construction lawyers will help to provide clarity to the situation and might actually help to avoid litigation. They’ll be able to decipher the relevant laws and contractual duties in order to uncover who, if anyone, is at fault and who might be liable.

Terminating a contract, or taking some other action set out in the agreement.

Want to exercise a feature of the contract, like a termination clause or an escalation clause? A contract might provide for the ability to take an action like a termination or a price escalation – but proceeding without caution could actually result in liability. Before exercising contractual options, it’s a good idea to talk to a lawyer about how exactly that should be done and some potential issues that might arise. Whether that’s before the agreement is signed or before some action will be taken, the guidance of a construction lawyer is invaluable.

If I Need a Lawyer, What Should I Do to Help or Prepare?

  • Be organized. Have all of your paperwork organized and readily accessible.
  • Document everything. Get your contracts, change orders, and other important documents in writing and signed. Have backup paperwork for anything that’s related to the dispute.
  • Follow your contracts to the letter and send any required contract notices. Following your contract to the letter doesn’t give a potential legal opponent much room to maneuver.
  • Do everything you can to avoid disputes. This one might seem a little Pollyanna, but it’s usually easier – and less expensive! – to avoid a problem altogether than to try to smooth out a problem after it’s already happened.
  • For payment issues, leverage your lien rights. Send preliminary notices and a notice of intent to lien if a payment issue develops. Lien rights are just that – rights. They’re there to make sure folks just like you get paid the money they’ve earned. Don’t be shy about leveraging your rights!

Finding the Right Construction Lawyer

There are a number of other websites online that hone in on connecting lawyers with parties that have legal questions. Some of the top ones that come to mind are Avvo, Lawyers.com, and JustAnswer.

On these sites, individuals can ask their legal questions and receive legal information and legal advice, and lawyers can be sorted by location, practice area, and consumer ratings. When a construction dispute has reached the point of no return, and a construction lawyer is needed, these sites do a great job of connecting parties with the right lawyers for the situation at hand.

Get In Touch

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805.316.1180

Email

dan.knight@danknightlaw.com

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Office: 1103 Johnson Ave #H
San Luis Obispo CA 93401 

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