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Last edited 16 Feb 2021
Lawyers in the construction industry
A lawyer is a qualified professional who practices law, advises clients on legal matters and may represent them in a court of law. Lawyer is a generic term; depending on the circumstance, they are also called barristers, solicitors, counsels, and attorneys (US). Lawyers can work as sole practitioners, in groups with other lawyers (law firms), or as part of a legal department in a private company.
In the UK, lawyers are usually referred to either as solicitors or barristers. Seeking legal advice can involve a visit to the office of a solicitor. The solicitor can advise on many legal matters and will charge a fee for doing so. If the matter needs to go to court, the solicitor will typically arrange for a barrister to represent the client in court. Traditionally, UK solicitors have not represented their clients in court – these advocacy functions have been the realm of the barrister. However, in recent years, solicitor advocates can act in court for their clients at certain levels that were previously barred to them.
- Because a case or claim has been started against them (so they are the defendant)
- They wish to start a case against a third party (so they are the plaintiff).
- They are buying or selling a property or making a will.
- They are party to a divorce.
- They need legal advice on a situation e.g business, criminal law, property, claims etc.
If a case goes to court, the lawyer (in court referred to as a barrister) must convince the judge and jury that the client is either innocent of any wrongdoing (if a defendant) or if a plaintiff, that they have a justified case against the other party.
Prior to the court case, the solicitor typically compiles all the facts from the client and briefs a barrister in writing. The barrister then researches, drafts, and files the necessary court pleadings, stands up in court and argues the case orally.
Lawyers can charge high fees for their services although some may, on occasion, offer their services free of charge, a service called pro bono (for the public good). Because their fees can be so high and could easily deplete the savings of many if a case goes unsuccessfully in court, some law firms offer a ‘no win, no fee’ agreement (also known as a conditional fee arrangement). So, if the case is lost in court, the law firm does not take a fee from the client, saving them considerable amounts of money, including having to pay for the opponent’s fees. In a no-win no-fee arrangement, clients do not incur any up-front costs but are expected to pay their solicitor’s fees if the court verdict goes in their favour.
Disputes are very common on construction projects, and can lead to expensive and time consuming court cases, as well as the break down of relationships between the parties involved - who may still need a working relationship to complete the project.
As a result, construction contracts commonly include provision for alternative dispute resolution techniques such as adjudication, arbitration, mediation and so on, which are considered to be less confrontational, and can be faster and cheaper.
The construction sector is also subject to statutory schemes which impose adjudication procedures in the absence of contractual agreement (such as the Housing Grants, Construction and Regeneration Act 1996 and the Local Democracy, Economic Development and Construction Act 2009).
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