Tag Archives: risk avoidance

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 .

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.

 

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

 

Construction Termination Issues Part 6: This is the End (Tips for the design professional)

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Whether your role is in helping analyze the contractor’s work on the project to certify a contractor’s termination for cause, or you are being shown the door yourself, and everything in between, termination is a subject that is ripe with potential problems.

pencil tipsConsider these summary tips as part of your practice, every time the termination idea arises:

  1.  Remember that you are the neutral and must be impartial between Owner and Contractor
  2. After you have made a fair decision, document your decision to the Owner and Contractor
  3. Provide options less nuclear for Owners– stop work; removing scopes of work; etc.
  4. Guide your Owner on proper termination, notice provisions, and the like
  5. Document project status, regardless of who is doing the firing and who is leaving the project
  6. Document next steps in the work on the critical path if you are the one leaving the project
  7. Discuss the use of your subconsultants if you are leaving
  8. Protect your plans and specifications, and only release them with protections (licensing fee; limiting language on the plans; and/or indemnity agreements)

Did you miss any of the series?  You can find it all at these links:

Or, use this link if you’d rather have a downloadable PDF of the entire series.

Still have a burning question that I haven’t yet addressed?  Let me know below or drop me an email.

Until next time……… Hasta luego!

Photo by Petr Kratochvil /Public Domain Photos