Introduction
John Marquess, Chairman, chief executive and general counsel of Legalgard, in his paper on dishonest legal bills (1994) recalls a scene from a film he watched with his 8-year-old daughter which drove the audience “absolutely wild”: this was the first official dinosaur murder in Jurassic Park (1993), which involved a lawyer being plucked right off the toilet and eaten by a runaway Tyrannosaurus rex.
During the discussion that followed the film, his daughter noted: “I thought he would have passed him by just as a matter of professional courtesy.” While we are all familiar with this line, as it appears in many common jokes amongst lawyers involving a range of sharks and vultures, the selection of a stereotypical lawyer as the first victim of a fairly banal behemoth of the prehistoric world was probably not coincidental.According to Susskind and Susskind (2015), the legal profession as we know it today is an artefact built to meet a particular set of needs in a print-based industrial society. As we progress into a technology-based Internet society, the legal profession, or any profession in its current form, will no longer be able to satisfy the needs of society: professions are unaffordable, often antiquated, the expertise of the best is enjoyed only by a few, and their work is not transparent. For these and many other reasons, today's lawyers should be, and will be, displaced by feasible alternatives.
In the film, the unfortunate individual devoured by the Tyrannosaurus rex was Donald Gennaro, a lawyer sent by Cowan, Swain & Ross to inspect Jurassic Park, who was also the general counsel for InGen. In the scene, once the Tyrannosaurus rex knocks the hut down around him, Gennaro, having approximately 10 seconds of life remaining, readies himself to be eaten: he is calm, and makes sure his hair is slicked back. He seems to be particularly unsurprised about the event, which adds to the general horror of the scene.
The television channel MTV rated the act as ninth in their list of “9 Most Horrific Deaths in the Jurassic Park Movies” (2013).Gennaro, a stereotypical lawyer, is likely to have spent his life amassing intellectual credentials; he is probably a graduate of an elite university, with a CV full of Latin honors. He made the law review at a top law school and has clerked for federal judges. By choosing this educational and career path, he was promised job security, steady career progression, and was guaranteed a fairly comfortable life in return for spending a lot of time being rather bored. Then suddenly his hut is destroyed—not only by a Tyrannosaurus rex, but also by today's key drivers of change in the legal services market: with the eBay dispute resolution site resolving 60 millions complaints a year, changes in the law are making it easier for accounting practices, estate agents, building societies, banks and others to offer legal services on the side.
Faced with extinction in the stomach of a roaring dinosaur, Gennaro had the same amount of time left that the American runner Florence Griffith-Joyner needed in 1988 to complete a 100-metre dash. Gennaro, however, remained still. Moreover, having being caught in the act he did not seem to even contemplate an attempt at a lucky escape, focusing instead on preparing to die.
Unlike Gennaro, the lawyers listening to the presentation by Des Hudson, the Law Society's chief executive, were shocked at the realization that their days were numbered when he told his audience that “survival is not compulsory” (Hilton 2013). Drawing an analogy between the optometry and legal services markets, he brought to the attendees' attention the consequences of the Opticians Act 1985, which repealed the legal monopoly for opticians on sight tests and the dispensing of spectacles. In 1985 there were 3500 independent optical outlets enjoying a 65 % market share by revenue. In 2010, there were 3750 independents, with the market share reduced to 27.5 %, while the market itself grew by 80 % (Baksi 2012).
The growth in the optometry market was not driven by the nation's eyesight suddenly getting worse, but because of the innovation in provision of services: the advertising of the benefits of proactive eye care, the introduction of new products such as disposable contact lenses, the promotion of glasses as a fashion accessory and, according to WebMD, their potential to reduce wrinkles (“Don't squint—get reading glasses!” (Bouchez 2008)).Although it is highly unlikely that any innovation in legal services carries the potential for improving one's looks, it definitely creates the potential for an increased awareness of legal issues, encouraging individuals and businesses to take a more proactive stance with regard to their legal health. The innovation in law may take many forms, from the restructuring and rationalization of old ways of working to a transformation in the way that legal expertise is made available within an organization or industry, or in society as a whole. While both propositions attract deserved scrutiny among legal entrepreneurs and visionaries, there is one aspect of the latter which appears to remain overlooked: in their evolution, lawyers are able to not only draw analogies from the work of others and carry the lessons learned into their own area, but also to appropriate opportunities in other fields, even if they are not immediate neighbors, by re-defining their professional requirements to include legal education and training. As suggested by Susskind and Susskind (2015), if we think more widely and strategically about professionalism in general it is not at all clear where the boundaries of the professions lie, nor in accordance with what criteria they can be delimited. The steady evolution of all the professions—the emergence of new ones and the exit of obsolete ones, the overlapping and constant rubbing of shoulders—creates an opportunity for lawyers to encroach on other, non-legal professional territories, especially in sectors identified as having a low representation of professionals with a legal background.
Construction is one of the few uncharted waters. While in other sectors there might be complaints that lawyers are too intrusive, in construction lawyers are very rare and remote, called in as “rottweilers” to sort out problems, usually when it is too late to achieve a good resolution (with the overarching question: “Whose budget does it come from?”). Construction contract administration and management teams are usually “unspoilt” by law degrees and often separated from their corporate in-house legal departments by hundreds of miles, in a literal sense (providing there is an in-house legal function at all). No surprise then, that according to Arcadis (2015), the number of formal disputes in construction is increasing on an annual basis: the most common cause of construction disputes globally, for the third consecutive year, is (1) failure to administer the contract properly. This is followed by (2) poorly drafted or incomplete and unsubstantiated claims, (3) errors and/or omissions in the contract document, (4) failure to understand and/or comply with its contractual obligations by the employer, contractor and subcontractor and (5) failure to make interim awards on extensions of time and compensation. There is certainly a scarcity of professional staff in the industry in general, and an over-reliance on contract professionals with limited legal awareness in favor of a construction sitebased background. A greater involvement of contract professionals with legal background offers, at a minimum, a promise of ample resolution of at least two causes which made it to the top five in 2015, namely poorly drafted claims and failure to understand contractual obligations. Considering the average value ($51 m) and length (13.2 months) of a construction dispute, the potential benefits to the industry of legally trained professional staff taking over contract administration and management roles are immense.The introduction of a legally trained contracting team could be a very strong market proposition for the corporate built asset consultancy, with the potential to improve customer choice and service, ensure compliance, improve the company's bottom line and deliver better outcomes.
It offers opportunities for the fundamental re-definition of legal roles in the new, leaner corporate structures in the construction industry, has the potential to generate new ideas and methods and extend the boundaries of contract administration and management in construction.Although this opportunity exists, only a handful of lawyers express an interest in traditionally non-legal roles in construction. Contracting in general, and the construction sector in particular, is not perceived as an attractive career choice for someone with a legal education and training, and the reasons for this situation are complex. A careful consideration of various aspects of legal work indicates that certain myths and external pressures, such as social stereotyping and peer pressure, and personal ones, such as inflated social and pay expectations, represent a forceful challenge to new ideas and opportunities for lawyers. As pointed out by the English economist John Maynard Keynes (1935), “the difficulty lies not so much in developing new ideas as in escaping from the old ones.” It seems that a recognition and consideration of these issues may offer inspiration to those considering creating or taking up traditionally non-legal jobs in construction.
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