Category Archives: Damages

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

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 .

Being the Bearer of Bad News (Sounding the Alarm on construction issues early and often) (law note)

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Our recent look into termination brings up another issue important to architects and engineers–  how to sound the alarm about construction or building code violations.  Sometimes, a project owner may be so focused on project completion that they want to overlook the sub-par work that may be occurring in an effort to get project open “on time”.  In such cases, only if a life safety violation is reported to the authority having jurisdiction will the owner finally terminate a faulty contractor from a construction project.

Bad News

They kill the bearer of bad news sometimes, don’t they?

Even if the work is not a life/safety issue, it is important that when delivering bad news about the quality of work that your notice be early, loud, and frequent.  Basically, everyone involved should be aware, through written communications, that there is an issue that needs to be addressed on site, the contractor is messing up the construction, and what needs to be done to fix the issue(s).  If the owner is willing to live with the faulty work (and it is not a life/safety matter), then at least you’ve provided notice and warned them of the issue.

Even then, you could get dragged into litigation later on.  That’s right– even if you state, in writing, that something is happening which you do not approve of, and you limit your own further involvement in the project, you can be sued.  So if the issue is significant enough– you may have to walk off the job yourself.  

Think of the recent Titan tragedy.  One OceanGate employee has claimed that he was  fired after he raised safety concerns.  Despite warnings some several other experts that the submersible was not properly designed and safe for the underwater exploration, the company went ahead with the ill-fated trip.

As a design professional, you cannot always help owners help themselves, but you must try to do so.  You must document the issues, multiple times, multiple ways, to multiple individuals.  Even if that means losing out on a job.  As you watch others (but not your own Firm) get dragged into litigation over construction issues that you previously warned the owner about, your future self will thank you.

Your turn:  have you ever had to deliver very bad news about a project to the owner?  How did you do it? Did the owner take action?  Share below in the comments, or drop me an email.  

Photo (c) Bad by Nick Youngson CC BY-SA 3.0 Alpha Stock Images

 

Are we having fun yet? Construction in a post-COVID world (law note)

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Remember how I said to never assume?  Yeah, about that……   even when you plan for failures, mistakes, and other problems, sometimes things get so outside the realm of what you considered that it can leave your construction project spinning.  Take, as a random example, a world-wide pandemic that shuts down supply chains, shuts down job sites, and limits the labor pool.  Just as an example.

What does construction law say about pandemics?  They fall under an “Act of God” that you may have read about in your contracts, or in the contracts of the contractors working your projects.  An “Act of God” is an event that is not foreseeable, and as such not something the parties could have anticipated when they drafted the contract.  Acts of God generally excuse a party’s failure– for example, a contractor’s failure to complete the project on time can be excused when an “act of God” has occurred. 

By now, you’ve dealt with the practical fall out, one way or another.  Many projects no longer made financial sense for your clients.  Others may have been modified, reduced in scope, or had substitute materials put in place.

What do you, as an architect or engineer, do now, faced with the potential for further shut downs, supply chain issues, and other COVID variants?  The short answer is to give yourself options and assume changes will be needed to your own scope of work on each project.  Consider:

  1.  If the project needs to be re-designed to account for shortages, can that be an additional service that you get paid for?
  2. If the project requires substitute products, how many of those are part of your basic service, or is there a point at which you should get paid hourly for researching, reviewing, and approving substitutes?
  3. If the project takes a lot longer than anticipated to complete, whether due to government shut downs, labor issues, or supply chain problems– can you get paid increased contract administration fees?  And, is there a contract provision that allows you to increase your hourly rate after X number of months, to reflect inflation?

These are some of the ways that you, as a designer, can protect yourselves from ongoing delays, and make sure you are not tied to a project without a way to recoup your extra costs.

Thoughts?  Questions?   Share what’s worked for you or what you’d like to learn more about in the comment section below.

 

 

How your disgruntled client can turn into your very own car crash! (and how to avoid it)

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Over the summer, I was involved in a car crash.  It was *not* my fault– heck, I wasn’t even driving but riding shotgun.  But it wasn’t my husband’s fault either.  A guy pulling out of a parking lot was watching the traffic coming up the road, but failed to see our car sitting in the same intersection waiting to turn into the same parking lot.  He ran right into us.  Here was the damage:

car damage

 

It may not look like much, but the panels were so damaged it cost almost $9k in damages, over a month of car rental fees, and a LOT of aggravation on our part.  The guy who hit us was very nice, apologized, and was concerned if we were injured.  His insurance company ultimately paid for all of the damage.  However– it wasn’t he who suddenly got a new part time job– that was me.  I had to spend lots of time with police, insurance representatives, auto body mechanics, rental car places, you name it.  If you’ve ever been in an accident, you know the headache involved.  In fact, I have had 2 other accidents over the years (again, neither of which were my fault– I think I’m just a beacon for bad drivers?).  One of those accidents was a 4 car accident– a driver hit my car, pushing it into the car ahead, which went into the car ahead of that.  In that accident, my car was actually totaled.  Fun times!

How is this relevant to your life as an architect or engineer?  If you stay in the game (that is, the design field) long enough, chances are, you will, at some point, end up dealing with disgruntled clients.  One of those clients may even file a lawsuit against you.  Or, for that matter, you may end up getting sued by another party involved in your construction projects– one that you don’t even have a contract with.

If that happens, you too will have a new part-time job– working on your defense.  Think meetings with your attorneys, calls with your insurance adjuster, unbilled time sitting for deposition, searches through all of your project emails and files, and the potential for a long jury trial (again, unbillable time for you).  Sounds fun, doesn’t it?  Maybe even makes you want to scream with the unfairness of it all.

The thing is, while there are certain things you can do to minimize your risks of being sued and your chances of prevailing if you are sued, even if you win, you’ve lost in time and opportunities.  In a fair system, you wouldn’t face this for unfair or frivolous claims.  In a fair system, I wouldn’t have to spend hours dealing with the fall out of an accident I didn’t cause.  But sometimes, stuff happens.

Just like there are ways of minimizing your risk of car accidents (turn signals, watching for inattentive drivers) and reducing damage when they occur (using seat belts, driving slower), there are also ways to minimize your risk of a lawsuit and reducing your damage when they do occur.

Some ideas:

  1. Have a written contract for every project, every time
  2. Get that contract reviewed by your insurance carrier and lawyer
  3. Be sure to specify what you will, and will not be doing in your scope of work  (being redundant is good here!)
  4. Establish clear payment terms, and expectations about fees for additional services, up front.
  5. Have good document management systems in place, which you’ll need for if/when litigation does occur
  6. Be aware of warning signs that there may be a lawsuit in your future; and
  7. If you do get sued, don’t panic, but take some steps to help your case get off on the right foot

But remember, when all is said and done:  you place your bets and roll the wheel.  Sometimes, your number comes up.  While these tips cannot prevent being sued by a disgruntled client, they can lessen the risk and impact.  And that is *almost* as good as getting your car fixed, returning the rental to the shop, and quitting your new part time job!

Have you had to suffer through an unfair lawsuit from a disgruntled client or third party?  Tips you wish you had known earlier?  Concerns about your own contracts?  Share in the comments below or drop me an email at mbrumback@rl-law.com.

Photo: Creative Commons License