For Engineers & Architects: Top 10 Construction Law in NC Blog Posts

top10Since I have so many newer readers here at Construction Law NC, I thought a brief summary of some of the most popular posts might be helpful.  (I have also added this list to the About Me & Contact Info page, in case you want to refer to it later).

Presented below are the top 10 posts by popularity (although the list does fluctuate some):

  1. “Substantial Completion” on the Construction Project: How is it defined?  (always a popular post; owners want every last paint scratch fixed before they are willing to consider the project complete)
  2. The Sticky Statute of Limitations in NC  (the general rule: 3 years from date of service; however, there are many exceptions)
  3. Statute of Repose: Putting your Risk to Bed  (after 6 years, in North Carolina, even the exceptions to statutes of limitations don’t help)
  4. Planning Ahead for Additional Compensation  (money; cause, we all need to get paid!)
  5. Spring Cleaning: 6 Contract law tips for limiting risk on construction projects  (contracts are the first step in limiting your risk- read here to learn how to make them effective)
  6. How to Smartly Handle Project Documents  (your policies and procedures with documents can make or break a lawsuit)
  7. The Architect’s and Engineer’s “Standard of Care”  (note: perfection is NOT the standard!)
  8. Design Error and the Spearin Doctrine (why your designs must actually, you know, work!)
  9. Active vs. Passive Negligence (sharing the blame, unequally, when something goes wrong)
  10. Adding an “Additional Insured” in the Professional Services Agreement: an exercise in futility!  (for those times when you have an obtuse owner- show them this!)

Are there other posts that you think should be added to this “Best of” collection?  Wish I had written a post on your pet topic?  Share below.

Photo (c) Independent Association of Businesses.

Setting the Right Expectations for your Owner Client– Craft your Scope of Work well (law note)

belt & suspendersRegular readers of this blog know that you absolutely should have a written contract, and not rely on “gentlemen’s agreements.”  But what is the most important part of your agreement to provide professional services?  The dispute resolution provision? Payment terms? Change Order requirements?  All of those are important.  I’d argue, however, that the Scope of Work provision is, if not the most important term, one of the key terms.  Face it– once you  have a good set of standard contract terms, they rarely need to be drastically rewritten for each individual project.  But each and every time you start a new project, whether for a long-time client or a new owner, you are defining the Scope of Work.

This is where paying attention up front can save you headaches down the road.  I often refer to the belt & suspenders approach— you want to both be very clear in describing the scope of work, and equally clear in describing exclusions to your services.  That way, everyone knows what is expected up front, and you can hopefully avoid litigation pitfalls down the road.

Bill Beardslee of Davis Martin Powell has coined a nice mnemonic for Scope that is very apt:

S C O P E

Sufficiently

Control

Other

Peoples

Expectations

 

Your turn. Do you carefully craft your Scope of Work for each new Project?  You should.  If you need help in crafting your Scopes of Work, drop me a line. 

 

 

Even a text can make a contract! (law note)

text message bubblesI’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on.  Of course, you need to update the plans and specs.  But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.

Tennessee lawyer Matt Devries recently wrote a nice blog post entitled:  LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing  how even text messages can be legally binding.  Something to remember, and learn from.  I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do.  Just don’t rely on a conversation alone.  Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.

Read Matt’s post and drop him a line.  And comment below if you’ve ever considered using text messages to establish a written record of agreements.

Photo courtesy Pixabay.

Of backwoods towns, train-wrecks, and feuding neighbors (i.e., an Email warning) (law note)

Train WreckWhat is it about train-wrecks that we all slow down to rubber-neck the blood, guts, and gore?  Whatever the reason, we all love to watch a good fight– especially those on-line, where people treat one another less than human.

A recent neighborhood list serve that I am a part of just had a particularly vicious debate between two people who, had they met over a cup of coffee instead of on-line, would at least have been civil to each other.  Instead, they sent verbal barbs back and forth to one another over (of all things) a door-to-door solicitor.  With the whole neighborhood watching.  What does this have to do with your professional career as an engineer or architect?  Glad you asked.  First, just a taste of the exchange:

Aggrieved Neighbor #1: 

I’m sorry for your view of the world and clear lack of broad social intelligence.  You add to the problem and underline the unnecessary drama applied to most modern dialect.  Please go get a few more degrees to convince yourself of your own intelligence.

Aggrieved Neighbor #2:

Nice ad hominem.  I never suggested that you or anyone else on this thread was lacking intelligence or motivated by ill will. Based on your last response, I still wouldn’t say that you’re lacking intelligence, but you are kind of a @#$%. Have a lovely day.

 

That was fun, wasn’t it?  Now, back to how this relates to your work.  These neighbors KNEW that others would see their remarks- hence the nature of a list-serve.  Now, how often do you send an email internally, not intending anyone other than your colleagues to see it?  Often, right?  Do you ever say anything inappropriate in the emails?  Off-color joke?  Tongue-in-cheek comment about the client?

Let’s say you’ve just had it with a particularly offensive client, and send your colleague this email:

Guess who changed his mind again?  That’s right, Mr. Wishy-Washy himself.  Need to revise the latest plans for the lobby area to include an extra work station.  Thanks!

Nothing too bad about that, right?  Would you like to have to explain why you are calling the client names in a deposition?  Cause every one of those emails is discoverable.

Here’s another one (modified from a real life example), sent to a former classmate in Faraway State:

Hey, Joe!  I hear that Mr. X is moving from Faraway to Random Town, North Carolina to run the Operations Facility There.  What happened to get Mr. X sent to a backwater town like Random Town, NC– hand caught in the cookie jar?  Drop me a line when you get a chance.

 

This email (modified ONLY slightly to prevent embarrassment by the persons involved) was actually part of discovery in a case I handled.  Now, imagine explaining to a local jury why you called them a “backwater town”.  The thing is, my client did not mean anything at all by the email– he was just ribbing his former classmate.  You know, the type of thing you do over a glass of beer.  Except here, it was documented.  For the other side.  For the court.  For the jury.

Keep these examples in mind when you are writing anything.  It’s the old New York Times rule— if it isn’t something you’d be happy to have your Grandma read about you in the NY Times, then don’t put it in writing.

Your future self will thank you.

Your turn.  Ever write or get an email that made you wince?  Think twice before sending those missives.  Jokes do not translate well in a construction lawsuit!

 

Learn from SONY: Don’t use trash talk in your construction project emails!

Bears hibernating

A hibernating bear and her cubs

Lessons in construction administration come from everywhere — including the SONY scandal.

In case you are a bear hibernating in a cave (in which case, go back to sleep!), you’ve heard about the SONY hacking that was apparently, but not definitively, done by North Korea due to their displeasure over the movie The Interview.  And, you may have found it amusing to read of the inner bickering at SONY, at lease until the threat of a national incident and the (at least temporary) yanking of the movie from its planned Christmas release.

Lost in all of the discussion about taste, censorship, security, and First Amendment rights, however, was a simple lesson for each of us.  Never put anything in writing that you wouldn’t want to see on the TMZ report, the Wall Street Journal, or the New York Times.  For example, don’t call one of the biggest stars in your studio (Angelina Jolie) a “minimally talented spoiled brat.”

I’ve written about this before, but this is a fine time to remind you that someday, someone will read your emails.  And that someone will not be privy to your internal jokes, quirky sense of humor, or understand that you just had a bad day.  If you have to have those awkward conversations– have them in person, or at least on the phone.  Don’t play around with written communications.  Every email, text, tweet, Facebook post, letter, note, or diary entry can be discoverable in a lawsuit.

We’ve all done it.  Sent inappropriate emails.  Vents.  Laments.  Stop.  Endeavor to be boring rather than funny in all of your online accounts.  You may be only laughing on the inside, but you’ll still have a job, respect, and knowledge that there are no hidden documents waiting to shame you at the stroke of a hacker’s keyboard.  And, tell your employees to do the same.

Do you have an example of getting an inadvertent email or text?  Something that could have been embarrassing if it leaked beyond your firm?  Share in the comments below.

Photo courtesy Wikimedia.

 

 

 

 

 

 

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