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Eight tips for getting the best out of your construction lawyer

30 Sep 10 Let's face it, using lawyers to advise on a particular transaction or to help to resolve a dispute is something that people try to avoid. There are good reasons for this, as Pinsent Masons’ John Williams explains.

Lawyers who specialise in particular disciplines tend to be expensive.  But whilst experienced, specialist construction lawyers are often not cheap, what they can bring to a project or a potential dispute is often of such value that securing their experience and expertise is deemed worthwhile.  If you decide to seek legal advice, there are steps that you can take to ensure that the relationship with your lawyer gets off on the right foot, that you receive the level of service that you are entitled to expect and that the advice or assistance from your lawyer is provided cost effectively. 

You might want to consider the following points:

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  1. When to instruct lawyers – bear in mind the difference between a reactive approach and a proactive approach.  Do you want advice in relation to a developing issue or advice in respect of a matter that has already arisen?  Legal advice is likely to be of far greater value if it is sought at an early stage.
  2. Regulatory requirements – before doing anything, your solicitor will need to establish whether there are any conflicts of interest before being able to act on your behalf.  So, you should know the full names of all organisations that are involved (or might become involved) in the relevant project or dispute. 
  3. Briefing your lawyer – if advice about a dispute is required, most lawyers will want to see all of the papers.  These ought to be provided in chronological order and without having been filtered for relevance.  Bear in mind that your lawyer might also need to see drawings, photographs, e-mails, even, if available, footage from mobile phones.  So, you should think carefully about what information you might have access to.
  4. The commercial backdrop – advice from a solicitor is always of more value if it has commercial context.  So, it's often very important that your solicitor is briefed on the wider commercial objectives in relation to the subject matter of the instruction.  You should also ensure that your solicitor fully understands the nature of your business and its wider strategic aims.
  5. Costs – you should agree an estimate with your solicitor for what a particular piece of work will cost or a fixed fee.  You might also want to agree with your solicitor how payment will be made for any further work which is required.  For example, will the solicitor be paid on the basis of hourly rates, a blended rate, a fixed fee or some kind of conditional fee?
  6. A team approach – you should establish precisely who will be responsible for carrying out the necessary work.  For example, will certain tasks be carried out by junior members of the solicitor's team?
  7. Clarity of instructions – you should ensure that your solicitor is absolutely clear about what it is that you require, how any advice is to be provided and by when it should be provided.  This should then be recorded, by the solicitor, in a formal engagement letter.  This should contain all of the terms on which the solicitor will act for you.
  8. Communication and relationship management – it might be worthwhile identifying who in the business has authority to instruct solicitors.  Equally, agreeing a communication protocol with your solicitor might prove to be useful.

Your solicitors should not be used exclusively to deal with problems once they have arisen.  They should be used creatively and proactively to add value to the company's business and as a means to help you reach your commercial goals.   

John Williams is a senior associate at construction law specialist Pinsent Masons 

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