Before any business or company
hires another entity to build something for it, great pains are taken to spell out what is expected from each
side and what the rights are of all the
parties involved. Yet, despite contracts
that are drawn up and signed before
any work begins, oftentimes those parties will find themselves in court, battling over negligence or a perceived
breach of contract.
“Although there certainly are statutes
and regulations that apply to various
aspects of design and construction, the
rights of the parties are also defined in
the contracts that they sign,” says
Richard R. Hardcastle III, an officer for
Greensfelder, Hemker & Gale, P.C. in
St. Louis.
The law firm won the longest civil
jury trial in the history of St. Louis
County when it defended the Cross
County Collaborative against Metro,
the bus and light rail agency, in an
$81 million civil damage suit.
“Disagreements over the meaning of
those contracts can lead to litigation,”
he says.
Smart Business asked Hardcastle
what parties on either side of the equation can do to avoid having to go to
court.
What steps can both parties take to reduce
the chances of ending up in court?
The first step to avoiding litigation is
a thorough review of the contract so
that our clients know where they stand
going into the project. Almost all construction litigation is based on either a
claim that somebody breached the contract or a claim of negligence. A big
part of our construction practice is
devoted to helping our clients avoid the
time and expense of litigation. The best
way to do that is to work with them
upfront with contract reviews, where
you can help the clients identify and,
perhaps, shift some of the contractual
risks or point out problematic or unfair clauses, things of that nature.
Once the client enters into the contract, the next step to avoiding litigation is to have a hands-on working relationship with the client. We stay advised and abreast of all issues as they
arise and resolve those issues as the
construction or design is proceeding,
rather than letting them pile up until
the end when there is a greater risk of
a blow up. If you tackle the smaller
issues as you go instead of waiting for
them to accumulate you have a much
better chance of avoiding litigation.
While in the process of tackling those
small issues you’re also helping the
client document their position, making
sure they are following their contractual obligations to the letter so that at the
end of the job, if it looks like litigation
is on the horizon, your client is in the
best possible legal position. And
frankly, if the other side has not done
the same, oftentimes, just by being prepared you can avoid litigation by showing the other side it’s going to be a losing proposition for them going forward.
Sometimes, however, litigation is simply unavoidable; it’s the type of society
we live in. When that happens your
clients want to be sure they have
lawyers who understand the business
and the nuances of construction law
and who know how to present or defend
a claim. One of our strengths is we have
a large department of people experienced in construction law who know
the law, the business and how to present
a case.
With so much spelled out in the contract,
what could be left to fight about?
What’s often left are the nuances:
What does this word mean or that
clause mean in this context? Or, this
clause seems to contradict that clause.
Believe me, there’s no shortage of
things to end up arguing about. The
more clearly you can state the obligations in the contract, the less opportunity there is for litigation down the
road.
How can a company best cover its clients’
interests?
A couple of ways. We think that a contract that is reasonable, clear and well
written is the best service that we can
provide for our clients. We also counsel
our clients to consult with their lawyer
as the project progresses so that simple
things like notice letters and things of
that nature are not overlooked. There
is nothing more discouraging for a
client to hear that they may have
waived a legitimate claim by having
failed to provide the requisite notice or
meet the applicable deadline. We help
make sure that never happens.
RICHARD R. HARDCASTLE III is an officer for Greensfelder, Hemker & Gale, P.C. in St. Louis. Reach him at (314) 516-2675 or
[email protected].