It was a very enjoyable and refreshing experience to attend the Australian Engineering Conference in November last year (2016). Despite having switched professions from engineering to law I’ve found that the engineering problem-solving mindset has remained thoroughly ingrained in me. As one delegate at the conference said to me ‘once an engineer, always an engineer’.
One of the great benefits of the Conference was to hear engineers speak frankly about their experiences with lawyers, and how we could serve them and their projects better.
How lawyers can be useful to engineers
(1) Technical literacy
A common concern amongst the engineers I spoke to was that their lawyers struggled to grasp the technical aspects of a dispute. This undermined the ability to focus negotiations directly on the root causes of the issues, as lawyers would often retreat via legalese back into their professional comfort zones.
Engineers were also concerned that litigation too often resulted in financially disappointing outcomes as important arguments, that would have been discovered by delving into the technical elements of the project, were not made.
An obvious advantage in having a technically trained lawyer is the greater role they can play in weeding ambiguity or unintended rigidity out of the description of the scope of work. As any project manager will agree, the scope of work is the root of much of the trouble on a project.
(2) Allocating risk to serve the project schedule
A major theme amongst engineers was the desire for risks, and disputes, to be handled in a manner that served the project schedule. It was remarked by one major construction firm during a presentation that despite instructing their lawyers to allocate the risks in the contract to the party best able to control or absorb them, the lawyers simply allocated the bulk of the risks to the other party (i.e. allocation according to least bargaining power). This meant having to send the contracts back for redrafting.
(3) Risk aversion
During one of the first presentations of the Conference the comment was made that lawyers are too risk adverse. Engineers do not want to be told not to do something because it is too risky. Instead, they see it as the lawyers’ role to advise them of the risks, and it is the engineers’ role to decide whether the risks can be managed.
(4) Public relations
There was an excellent presentation at the Conference by Andrew McNaughton on the High Speed Two (HS2) rail project in the UK. The talk focused on the public relations challenges involved in making major infrastructure project happen. Throughout the HS2 project, significant resources had to be dedicated to public engagement. A major part of this was the development of systematic methods for addressing challenges and proposals from the public and the media. It was noted that a project in Norway had neglected to apply the proper rigour and suffered a 2 year set back after losing a court challenge as a result. Lawyers have a clear role to play in assisting engineers to implement the systems required to manage the risks to their social licence to operate, and be prepared for potential legal challenges.
It is important to remember that engineers are professional problem-solvers. Risks are just problems to be solved or managed on the path to completing new and interesting projects. The satisfaction in engineering comes from solving the hard problems, experimenting with new methods, and the pride (or relief) in seeing a project completed.
Ashley Kelso MIEAust