You have the right to an attorney (but one will not be appointed for your construction lawsuit) (Law & Order: Hard Hat files Part 3)

by Melissa Dewey Brumback

lawyerEvery criminal worth his salt knows that he has the right to an attorney.  What about in construction law?  Not so much.  You do have the *right* to an attorney; however, you do not get one for free.  Do you *need* an attorney?  Not necessarily.  Then again, I prefer not to pull my own bad teeth, but hire a professional to do it for me.  Maybe you prefer the string-tied-to-a-doorknob method.  Not me.

In some situations, actually, you *do* need an attorney.  Any natural person can represent himself in court, fool or not.  However, if your company or professional association is sued, a company employee cannot represent that company pro se. That is, unless you have a licensed attorney on staff, you must hire a lawyer to represent your company.

There are two general ways that attorneys can be retained to defend you in the construction lawsuit—either your insurance carrier can hire them, or you can.  This is one of many, many reasons to have errors & omissions insurance.

If you have E&O insurance and are sued for professional malpractice or negligence, then your attorney will be hired and paid for by the insurance company.  You simply report the claim to your agent, and the insurance company will tell you who it has hired to represent you.  Nice, yes?

If you do not have insurance, then you must hire your own attorney.  How do you figure out who to hire?  The simple answer, of course, is to simply hire me! (kidding).  You will want to do some due diligence - ask for referrals, find out what types of attorneys in your area handle construction disputes, and talk with some potential attorneys.  Important questions to consider include:

  • Experience in construction disputes.  You don’t want a personal injury attorney who “dabbles” in construction – you want someone who does a lot of it.  In some states, there may be special certifications of construction lawyers; however, in North Carolina there is not any such designation at this time.  But the attorney should make construction law a regular part of his/her practice.
  • Knowledge of the design professional’s role.  Some lawyers and law firms mostly represent subcontractors in lien claims.  Others represent owners & bankers.  Some focus on general contractors.  And yes, others (including yours truly) tend to represent design professionals.  All things being equal, it is helpful to have someone in your corner who understands your industry, your industry’s jargon, and your industry’s practices.
  • Defense mindset.  Often, if you have found someone who meets the first two criteria, you will have found someone that has a defense mindset.  However, this is not always the case.  Some lawyers and firms tend to consider themselves plaintiff’s law firms; others consider themselves defense law firms.  If you have been sued, you obviously want someone who is of the defense mindset.  You can usually tell who these lawyers are based on their affiliations—for example, they tend to be members of their state civil defense attorneys network (in NC, the NC Association of Defense Attorneys), or they are members of a national network such as the Defense Research Institute.  In contrast, a plaintiff’s attorney will more likely be a member of the Academy of Trial Lawyers, Advocates for Justice, or the like.

If you already have a lawyer who you feel confident in, and who is qualified, can you get your insurance company to pay for him/her to defend you?  Sometimes.   You usually have some say in who is retained to represent you—for example, the right to request new counsel if you don’t like “the buffoon” they hired on your behalf.

If you have a lawyer preference, you can ask (but not demand) that the insurance company retain your lawyer in the lawsuit against you.  Your lawyer may need to agree to certain compensation, reporting, and other rules to be considered by the insurance company.  After all, they will be footing the bill.

Sometimes, you may find that your preferred attorney is already on the “qualifying” or “panel” counsel list of the insurance company, which makes it easy, and much more likely, that the insurance company will grant your request.  Remember, though, Jack McCoy and Lennie Briscoe didn’t ask to get to work together, they were just assigned to do so.  So it may be with you.  Regardless of who is your lawyer, read (or re-read) this excellent article on how to be an effective construction client.

Regardless of who represents you and/or your company, keep in mind that your attorney is your attorney, regardless of who is paying.  Anything you say to your lawyer must be held in confidence, and your lawyer is there to represent your interests.  Be honest with your lawyer, respond to his/her communications promptly, and work together.  Construction lawsuits are usually messy, but at least there is no funeral to deal with!

Next week in the series: Paperwork, and more Paperwork….Discovery in the construction lawsuit. Be sure to bookmark the blog, or sign up for email or the RSS feed, because you won’t want to miss any blog posts.

Photo (c) Dawn Hudson.


Written by:

Melissa Dewey Brumback

Ragsdale Liggett PLLC on:

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