Document EVERYTHING! Always! No Exceptions! (aka, help your lawyer help you!)

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I had a case last year in which once again I found myself thinking:  if only my client had better documented the verbal agreements, we would have had a much easier time defending his work.

lots of documents

I know this is often easier said than done— you are in the middle of building a project, and you get a call, and you need to keep the project moving.  No time for written change directives or a special bulletin.  And yet—it is simply amazing to me the number of people who develop “litigation amnesia” about things when a lawsuit is involved.

Your documentation system does not need to be perfect.  You can use a simple Field notebook and handwritten notations.  A text memo to yourself or, better yet, an email confirmation to the owner/contractor/whoever.

Documents that are created *during* a Project are direct evidence.  And if you end up before a jury, they’ll want to see what was said—in writing—at the time the dispute arose.

You may never need your notes.  You also may never need your fire insurance.  But it’s better to have them and not need them, then be in the position to wish you had them when you do not.

I have written about documentation systems before, and I’m sure I will write about them again.  But in the meantime, remind your staff that documentation is as much part of the job as any other act.  Develop good documentation systems.  And demand the same from your staff.

Your future self may thank you!

Your turn: do you have a solid documentation system or procedure?  Share below or email me at mbrumback@rl-law.com

The Who/What/How of Sealing plans for Architects and Engineers (law note)

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The proper use of professional seals in North Carolina is critical.  Failure to follow the prescribed requirements can subject you or your Firm to a Board sanction.

Did you know that the NC Board of Architecture and the NC Engineering Board have jointly prepared a fairly straightforward document that can tell you exactly what you need to know about sealing of plans?

That document, the “Seal Brochure” (pdf) is available for download.    Every state’s regulations is a little different (thank you Federalism!) so it is worth reviewing with your staff at regular intervals, especially if you do work across state lines.

One of the most important sections is reproduced here: 

What are the sealing requirements for plans/drawings?

Architects: must seal all plans and specifications for use in this state. (“For use in this state” means drawings and specifications prepared for bidding, procurement, permitting, or for construction.)

Registered Interior Designers must seal all plans and specifications for use in this state. (“For use in this state” means drawings and specifications prepared for bidding, procurement, permitting, or for construction.)

Engineers: The licensee must certify all engineering work in compliance with 21 NCAC 56 .1103 (pdf). Certification includes seal, date of signature and signature.

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Do you have any experience with dealing with sealing issues?   Did the licensing board get involved?  Drop me a line at mbrumback@rl-law.com or comment below.

Don’t hire me! (Principle is expensive, and lawsuits based on Principle are even more expensive)

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I spend a lot of time trying to convince my clients to NOT hire me.  I’m not crazy—let me explain.  Litigation is costly.  Very costly.  And it is time consuming.  Don’t get me wrong—I will go to Court and fight just as hard as you want me to, but I want you to know what you are facing before you go down that road.

warning ahead

Now, obviously, if you are the one that is being sued, you have no choice but to defend yourself and your Firm.  But if you are considering suing someone else, think long and hard about it before you pull the trigger.  There are ways to reduce cost, time, and risk:  for example, pre-suit or early mediation, or agreeing to arbitration in lieu of trial.    But I always want my clients to know that real law is not like Law & Order.  Things take time.  A trial is often a year or more away from when you first file the lawsuit.  Make your decisions on not just your heart, but your economic brain as well.

Now, if you’ve read that and still want to sue someone who has done you wrong, give me a ring.  We’ll litigate.  Just know that it won’t be wrapped up in time for top of the hour commercials.

Anyone care to share a war story here or with me via email?  Drop me a line at mbrumback@rl-law.com .

Construction and Design Contracts— they are more important than you might think! (law note)

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As regular readers of this Blog know, contracts are extremely important for all parties involved in a construction project.  While verbal contracts can be enforced, a written contract, which is finely-tuned to your specific project, can save you a lot of time and money later on if the proverbial poo hits the fan.

I recently read AIA’s take on contracts, in their Construction Risk Brief (which you

Shaking hands with bribe money

Hopefully your own contracts don’t start like this handshake!

should subscribe to [free] if you have not already).  Their featured article is on “Best Practices for Construction Contracts”.  In the piece, they discuss  7 key points to address in each contract.  I concur for the most part, although want to point out that some of them (such as the regular monitoring and documentation bullet point) are deserving of their own post, as there is a *lot* that can and does go wrong during the construction administration phase.

The AIA, of course, is interested in having you purchase a subscription to their 300+ form database.  And, if you are involved in a lot of projects, you should definitely consider doing so.  The AIA contracts have almost become the ‘gold standard’ of construction contracts due to their familiarity and popularity.  They are not, however, a one-size-fits-all set of documents.  The AIA contract forms themselves have some decisions or elections to make within them.  And, you may find that an AIA contract doesn’t work for your project.  For example, it may be too verbose for a small porch addition to a house, for example.  If you work with homeowner clients, they will (rightly) be very intimidated by the length and breadth of an AIA contract—even a small project contract from the AIA.

Can a non-AIA contract be used successfully?  Absolutely.  It just needs to have the same key issues spelled out so all parties know the agreement.

Check out the AIA’s article, and let me know if your own contracts pass the test.  If not, now is the time to update them to best protect yourself from future risk.

 

If you get ‘reported to the Board’ for your Professional License (law note)

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The NC Board of Architecture and the NC Board of Examiners for Engineers and Surveyors (as well as other Boards, including the NC Licensing Board for General Contractors) have grievance procedures in which anyone – client or not—can file a grievance against you.  That’s the bad news.  The good news is that the Boards have seen it all before, and if the grievance is someone unhappy about a bill, or using the process to harass you for unfounded reasons, they will recognize those complaints for what they are.

HOWEVER, this does not mean that you should treat any grievance, no matter how unfounded, lightly.  The first thing you need to do is contact your insurance broker/agent and report the matter.  Often times, your insurance carrier will hire an attorney (someone like me) to defend you free of charge (at least up to a certain dollar amount).  This is part of your insurance coverage, and you should take full advantage of it.

problem? write a grievance t-shirt

What if you do not have professional errors & omissions insurance?  First, get thee to an agent asap and get yourself some for any future issues.  Second, hire a lawyer anyhow.  You could do it yourself if you choose to do so (although  “a Man who is his own lawyer has a Fool for a Client” ).  But whatever you do, do not ignore the Board’s inquiry.  Respond by the deadline they give you, with all details and information that they ask for.  Sit down for an interview with the Board investigator.  Do not bury your head in the sand and hope it will all go away on its own. 

And no, most cases do not result in loss of your professional license.  There are some egregious cases where the license is in jeopardy, but those are few and far between.

I have helped clients with Board grievances survive the process.  As I have told them, a Board grievance is never good news, but it doesn’t have to break you.  Use your available resources to minimize any negative outcome.

Photo: Cristian Lopez  Credit: Printerval  CC by NC 4.0