The OBA has asked me to reflect upon my career and perhaps offer some advice along the way. It’s a privilege doing this, earned if for no other reason than my longevity. I was admitted to the bar in 1978 and have been practicing construction law since 1979. That span of time has permitted some successes, although I can think of none which might have come about without the help and support of a great many caring people to whom I am forever grateful. Success in the law, as in most everything else, is not a solo performance.
Not least among the many changes along the way has been the emergence of construction law itself as a standalone area of practice. Even large firms, traditionally supported by their corporate departments, have accepted their construction law practitioners albeit with the occasional touch of envy. Construction lawyers really do have more fun, after all.
Rather than recite the many changes over the last 45 years, I propose to do something different. I am in that awkward place occupied by any senior practitioner: A feeling of being left behind, especially when it comes to skill with technology, while at the same time aware of an ever-expanding horizon not yet sensed by our younger colleagues. As my favourite business writer, Charles Handy, once put it: You can only see forward as far as you can look back. So I offer this forward-looking reflection in five stanzas in the hope that it might do some good.
- Look for the patterns
I learned this lesson the hard way.
In the years between my starting to practice construction law and the late 1980s, I managed to develop a practice supported by a stable of six or seven inherited clients who reliably kept me going doing mostly lien work and contract disputes. Life was busy but good. I kept my head down, met my annual targets and carried on in blissful oblivion.
Then came the economic downturn of the 80s which people called a recession but in my world was nothing less than a full-blown depression. In the span of two or three years during this period, every single one of those six or seven clients either went bankrupt or wound themselves up. I busied myself with whatever smattering of construction work still came my way, but subsisted doing general commercial litigation matters and even the occasional insurance defence file. But I loved construction law and I didn’t want to be blindsided like that ever again.
It occured to me that although I had developed a comfortable practice in a niche area, I knew almost nothing about what really mattered, both to me as a practicing professional and to my clients as business people - things like the importance of a compelling vision and a strategy for getting there, marketing, building and maintaining a team. I was blind to the broader trends in the industry and in society at large. I thought I was selling legal services when what my clients were actually buying was aspirin, pain relief. That revelation completely reoriented my worldview. I started reading business literature, an MBA’s-worth of it. I began participating in industry associations, which is commonplace now but was then a lonely exercise viewed with skepticism by many in an industry whose mistrust of the legal profession ran deep. And I began writing and especially speaking, which I enjoy and which has proven to be an excellent way to keep up.
At any given time, there are numerous trends in the industry and in the broader world which can impact your practice. Examples presently include the march away from the Contract A/Contract B paradigm in public procurement. Couple that with the prevalence of reprisal clauses promulgated by municipalities across Canada and you have a playing field that is badly skewed against the contracting community. What should properly be your role in this? How might you influence fair and balanced procurement practices? We also have the emergence of ESG as well as collaborative contracting models such as progressive design-build, alliancing and integrated project delivery. Are you up on these? Your clients will be asking.
On the global stage, we have the rise of authoritarianism around the world, most recently in the U.S. How might your practice be affected when the temper of the times, the zeitgeist, favours the exercise of raw power unchecked by respect for facts or even the rule of law, and without regard for the common good? Will collaboration in project delivery be rendered more difficult? Will the possibility of compromise in the resolution of disputes become more remote?
These are just some patterns that occur to me and you will doubtless think of many more. Pay attention to them! They will provide opportunities for healthy influence and perhaps take your practice in unexpected but satisfying directions.
- Give back
In early 2008, I was asked if I might be interested in joining the Canadian Construction Documents Committee as its ex officio legal representative. It meant giving up five weekends a year plus the Mondays and Tuesdays following, as well as the occasional cross-country speaking tour and other meetings on an ad hoc basis. Other than reimbursement for direct expenses, the role was uncompensated. I took the gig and have been there ever since.
It remains the hardest working committee I have ever been involved with but the rewards have far exceeded the time and effort put in. In the ongoing exercise of listening to the sometimes divergent interests of owners, contractors and design professionals, I have learned more about industry best practices that I could have in any other way. I have also come to know many people from across Canada whose selfless dedication remains an inspiration.
And that’s the thing about volunteerism: done in the right spirit, the rewards will always be greater than the effort, even if it’s just expanding your network. The right spirit? – going in with a genuine desire to make a useful contribution coupled with a humble willingness to learn from other like-minded people. I recommend it.
- Get out of your office
I don’t believe you can learn anything really worth knowing about construction sitting behind your desk.
That CCDC experience mentioned above has taken me to every Canadian province and a smattering of foreign destinations. Beyond that, there have been multiple Board appointments to ACEC Ontario (then called Consulting Engineers Ontario) and the Canadian Construction Association, and various other committees and working groups tackling one issue or another. I can confidently say that whatever I may have usefully learned about the industry has been picked up in those countless meetings, and especially, in the restaurants and bars afterwards.
You don’t have to engage with the industry to this extent, but at the very least I would encourage you to do so with your clients. Visit them, and above all, visit their sites! They would love to have you. Yes, it means having to buy some PPE, but then how can you call yourself a real construction lawyer if you don’t own a pair of safety boots??
Those safety boots will be handy at the next annual site tour sponsored by the OBA’s Construction and Infrastructure Law section. The OBA provides yet another excellent excuse to get out of your office! Thanks to the enthusiastic dedication of its executive, this section invariably provides stimulating opportunities for learning and is also an effective voice in matters of legislative reform. Participate!
- It’s not about the technology
When I started practice, the tech of choice was the IBM Selectric typewriter, a wonderful machine. Then came the Wang word processor – words were “processed” then – which required a special climate-controlled room and dedicated operators whose only job was to scan in the drafts which our assistants typed up using a special font ball in their Selectrics, then work the machine to receive our edits and produce a finished product. The processing of words then migrated to our assistants using the PCs at their desks, and finally to the computers on our desks where we lawyers are now our own word processors. Such is progress.
There were other tools too. I’m thinking of the many Blackberries I have owned, as well as a Palm Pilot or two, not to mention those Dictaphones in their various iterations. Has any of this made me a better lawyer? I know it made me a more frenetic one, but better? I doubt it, but the toys were amusing at least.
My good fortune is that I am of the generation that transitioned from the technological Stone Age to our present world of instantaneous electronic communication, social media, AI and all the rest. Those of you in your 20s and 30s have not been so lucky and I confess to a bit of worry about this. While we have all become addicted to those little hits of dopamine whenever our iPhones ding with some notification, we of a certain age can at least remember a life before that, when we had room to think without distraction, when we had to talk to clients and friends. That loss of connection both to ourselves and to our community is real and poses a challenge to us all, perhaps best described as maintaining the essential humanity of our calling. The practice of law is a contact sport, one human to another. How achieve that in a world tainted by the existential isolation inherent in our electronics, I’m not sure. But I know you will work it out somehow and I wish you luck.
- Don’t sell your soul
In his excellent introductory piece in this series, my colleague Duncan Glaholt offered this piece of advice: Mind your reputation, “make it a reputation for always taking the high road”. He then closes, ominously, with “… it works and will test your character almost daily”.
Indeed. Truer words never spoken.
We’re not referring here to those who steal client’s money, actively mislead the court or commit similarly egregious wrongs. These people are best quietly forgotten, confined to that special corner of hell that awaits them. There are however other ways to sell one’s soul and it is an occupational hazard which afflicts us all.
In the course of your work, you will often be called upon to advance some position or other which is at odds with your personal sense of what is right and wrong. It could be drafting a contract provision which is oppressive, or advancing an argument in litigation which you know is legally untenable but which the client insists upon, or endorsing a client policy which is unfair and runs counter to what you know are the best practices of the industry. These and countless other examples will force you into making choices, choices which are admittedly easier for a senior counsel than they may be for a junior working with an overbearing partner or some lucrative firm client. Still, you must choose.
Your choice may be made easier if you accept the premise that your obligations reach beyond your clients. I believe that as construction lawyers, we assume a special responsibility as gatekeepers to a legal system whose purpose extends beyond the specific case to include improving an industry whose impact invariably affects the broader community. I appreciate that some of you may think this view idiosyncratic, that a lawyer’s duty is solely to the client, and the legal system and the marketplace will take care of the rest. Still, it’s what I believe and this has stood me well over the years.
Earlier I mentioned the rise of authoritarianism in our culture. I think this is the most dangerous threat our society has faced in several generations with implications that will only become clear in the coming years, none of them good, some of them hideous. Unfortunately, we construction lawyers will not be immune from the fallout. Those choices I mentioned will become starker and yes, your character will indeed be tested almost daily.
Choose well.
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