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Mistake No. 5 of the Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Being a Jerk to Opposing Counsel
Tuesday, July 9, 2024

I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I try to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is No. 5 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making this same mistake.

No. 5: Being a Jerk to Opposing Counsel 

One great part of being a construction lawyer is that most construction lawyers are reasonable, professional and make working with them easy. To be clear, such behavior is not inconsistent with always zealously representing your client. In most instances, I tell construction clients I prefer a good, experienced, and reasonable construction lawyer on the other side of a dispute. Having someone who knows what he or she is doing will many times save a client legal fees and enhance the chances of a reasonable settlement. The mistake (and it can occur with both young and old construction lawyers) is, simply put, being a jerk. Bad behavior can occur any number of ways, such as getting way too personal (“what kind of lawyer are you?”); inserting your ego into the matter (“never in my XX years have I seen such a **! argument); or simply refusing to cooperate when a reasonable request is made to extend a deadline (“why should I do that since you and your client are **?). 

 The old adage “what comes around goes around” is applicable. If you are uncooperative or refuse to be reasonable and let your ego get in the way, you will get it right back, and it may not benefit your client. To be clear, we have all had difficult clients who want “scorched earth” tactics and zero cooperation. You should explain to the client why it is in her best interest to be cooperative and why you are not being nasty to your adversary. As a member of the bar, you also have professional and ethical obligations, as well as a reputation to protect (both you and your law firm). You can also, without waiving any privilege or compromising your client’s case, let your adversary know that it’s not personal. Most good construction lawyers know – or can figure out – when there are difficult clients on both sides.

For the “young” construction lawyers out there, be aware of other frequently overlooked consequences of being considered a jerk. First, especially in your geographical practice area, word gets around quickly. That could potentially affect how other lawyers deal with you and that may impact your representation of other clients. All experienced construction lawyers reading this know exactly what lawyers in their areas are…jerks.

Second, bad behavior can impact your personal and professional goals — and your pocketbook. Do you want to move up the ladder in participation on local, state, or national construction bar organizations? Doing so requires recommendations from your peers, and no one likes a jerk or wants to work with a known jerk. Also, in the construction legal world, multiple parties can be involved in a single dispute (e.g., owner/architect/lender/primecontractor/subcontractor/supplier/manufacturer). Legal, ethical, and sometimes business conflicts occur all the time, especially with larger law firms. When you have to tell a client that, unfortunately, you have a conflict that cannot be waived, that client will want a referral. You will want to make a referral to a colleague who you respect, who you know will not steal the client away for the next dispute, and who may have recently referred a client to you because of a conflict. Simply put, jerks do NOT get referrals. 

Finally, and this has happened to me many times: The other parties you do not represent in a matter will note your professional behavior. Just this year I was called out of the blue by the president of a large construction company looking to change counsel for all its construction legal needs. His company was adverse a few years ago to my client in very contentious construction contract negotiation, some of which were face-to-face with his counsel and him. He told me he remembered that while I was very tough and represented my client very well, I was good to work with, reasonable, and (while not using the word)… not a jerk. That company is now a good client of my firm. Having a former adversary hire you is one of the best compliments a construction lawyer can get. 

The moral to this article is simple: Don’t be the kind of construction lawyer who is considered to be a jerk. Don’t let your ego get in the way. Be aware of the consequences of unprofessional behavior. It will negatively impact your client’s case, and it can hurt your reputation, your professional development, and in many instances, your personal pocketbook. Be a bulldog for your clients. Be tough. Earn the other side’s respect… but, don’t be a…**!!!@@ [aka jerk]. 

Read Part 1, Part 2, Part 3, and Part 4.

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