Contractors tend to avoid calling for legal help. Partly this
is because they're used to solving their own problems, and
partly it's because they don't want to rack up attorney's fees.
But certain circumstances — let's call them legal
emergencies — absolutely require immediate legal
So what constitutes a legal emergency? Here's my list. If you
find yourself in any of the following situations, don't be
foolish. Call a lawyer.
Service of Process
When someone asks your name and then throws some legal
paperwork at you, it's called "service of process": You're
being summoned to court because either you or your company is
being sued or subpoenaed.
This is a true legal emergency. If someone sues you and you
fail to show up or otherwise respond, the judge can issue a
default judgment against you. That would mean you'd lost the
case, and you'd have to pay as a judgment whatever the
plaintiff was suing you for.
You can get into trouble by failing to respond to a subpoena,
too — regardless of whether you actually did anything
wrong. A contractor I know got dragged into a nondisclosure
suit between the new and previous owners of a house. The new
owner claimed that the sellers failed to disclose a defect they
knew about — defects the contractor must have told
them about when he remodeled the house several years
The contractor was subpoenaed to provide information in the
case. But he was busy and didn't want to get involved, so he
blew off several deadlines. The judge responded by citing him
for contempt of court, which is punishable by a fine or
— in extreme cases — imprisonment. Suddenly
it was the contractor who was in trouble.
What he should have done was call his attorney the moment he
got the subpoena. An attorney probably could have negotiated
with the attorney who issued the subpoena about what
information and records the contractor needed to supply, and
whether he had to be in court to testify.
Buried Contract Terms
"If this contract is not signed by 5 p.m. today, you don't get
the job." While this statement may sound like business as usual
with a pushy homeowner, it merits a call to your attorney
— especially if you didn't draft the contract or there
have been major revisions made to it by by the other
The sign-now-or-forfeit-the-job threat could be a strategic
way of getting you to overlook buried unfavorable terms in your
rush to get the deal done. The other week, a client came to me
with a contract he was being rushed to sign. Hidden in all the
legal verbiage was a clause requiring the contractor to
continue working even if there was a dispute about his being
paid. It was very unfair to the contractor — but
probably enforceable if we hadn't spotted and removed it.
You should also think twice about signing a contract that
comes back from the other party with items crossed out that you
have not discussed or agreed to. Even if they appear to be
minor issues, a quick once-over by your attorney — and
perhaps a "wait a damn minute" comment — could save
you a lot of time and money.
Employment law can be very tricky, especially if you fire
someone and the parting is less than amicable. It's important
to be aware of the legal parameters when you dismiss people,
especially if they were injured on the job or are in a
protected class (see "When Can You Fire Someone?," Legal,
Though not every firing is a legal emergency, it's best to
consult an attorney ahead of time if you sense that the
employee could become very upset or angry. Your general
construction-law attorney may not specialize in this field, but
he or she will almost certainly be able to refer you to someone
Safety rules are sufficiently numerous and complex that
— despite your best efforts — you or your
employees are probably in violation of something. And if OSHA
decides that safety rules are being intentionally flouted, you
could be facing stiff penalties for "serious and willful"
An OSHA inspection can also snowball into closer scrutiny by
your workers' comp insurance carrier, especially if an
on-the-job injury was the impetus for the inspection.
The OSHA inspector might call to set up a meeting, but he's
more likely to show up unannounced. I tell clients to cooperate
but to say as little as possible until it's clear what he's
looking for and whether there's a problem.
If you're charged with a violation, consult with an attorney
or safety specialist. Our office — with the aid of a
safety specialist — has had a fair amount of success
in negotiating down the penalties. And sometimes it's possible
to negotiate the category of the citation from "serious and
willful" to something substantially less dire.
Workers' Comp Audit
If your workers' comp insurance carrier audits you and finds
recording irregularities, miscoding of work performed, or the
like, you could face sizeable back premiums, penalties, and
interest. Worst case, you could be charged with fraud.
At minimum, give your attorney a heads up if your insurance
company contacts you about doing an audit. It's best not to
handle this alone, because a contest between you and the
insurance company is not a fair fight. If your attorney isn't
sufficiently familiar with the technical details of workers'
comp, he or she should be able to find someone who is. When my
clients get audited, I bring in a freelance insurance
specialist who knows the drill and can mitigate the
consequences to the contractor.
The mere fact that the contractor has legal representation
communicates to the auditors (whether they are working for the
insurance company, OSHA, or anyone else) that they are in line
for some kind of pushback. Human nature being what it is, the
people coming at you may ultimately decide that easier pickings
can be found elsewhere.
Bryant H. Byrnes is an attorney in
Oakland, Calif., who specializes in construction