Tag Archives: risk avoidance

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

Posted on by

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)

Posted on by

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)

Posted on by

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!

 

What the Triangle’s Construction Boom Means for Dealing with Hispanic Crews (tip)

Posted on by

Today, we have a guest post from Elsa Jimenez,  founder of English to Spanish Raleigh.  Elsa is a native Spanish speaker who was born and raised in a Hispanic country. She is an accomplished lawyer and translator who has been living and working in the U.S. for many years and is also a member of the American Translators Association.

Construction in the Triangle is booming. Whether new construction or remodeling, the Triangle Business Journal reports that Wake County construction permits for August were some of the market’s largest gains of the past year – roughly a 20% increase year-over-year.

The trend of new homes and multi-family home construction continues to increase in the Triangle’s towns and cities, with Cary leading the way with the most permits issued. Towns like Raleigh, Apex, Morrisville, and Wake Forest also have many new development projects planned. This makes our area a prime target for companies like Choate, C.F. Evans, Wood Partners, and other builders and contractors, as they make their way into these areas to complete these projects.

With construction being one of the top industries with Hispanic or Latino workers, this trend means much more than a booming housing and development market in the Triangle. It presents a need for English to Spanish translation of business documents, employee handbooks, and safety manuals.

Here’s an example of how one contractor met the OSHA requirements and bridged the communication language gap with more than just their business documents:

 

job site sign in Spanish

One of the nation’s largest general contractor construction firms here in Raleigh, NC, Brasfield & Gorrie includes Spanish translated signage in front of their Crabtree Valley Mall site.

With the growth in construction projects in North Carolina, it’s equally important to put this into context in terms of the state’s Hispanic population. North Carolina has seen growth in the Hispanic population, above the national average.

Image Credit: https://ui.uncc.edu/story/hispanic-latino-population-north-carolina-cities-census

Image Credit: https://ui.uncc.edu/story/hispanic-latino-population-north-carolina-cities-census

According to the Pew Research Center, of the Hispanics and Latinos in North Carolina, only 19% speak only English at home (138,000). 81% speak another language at home (581,000). The Spanish language is a pillar in the Hispanic community, and speaking Spanish is not going anywhere soon, making it yet another “must” for companies, builders, and contractors to translate their documents from English to Spanish.

So, as we see the housing and development market continue to grow, we are likely to see more Spanish translated materials.

Make sure your business documents – from HR forms, safety manuals, and employee handbooks – are professionally translated from English to Spanish to accommodate the growing population of Hispanics in NC, comply with OSHA regulations, and meet the growing need of streamlined communication.

The best English to Spanish translation firm will be one composed of native Spanish-speakers, who know the contextual cues and nuances of the Spanish language, and can provide the crucial aspect of cultural relevancy – things that online translation tools simply cannot provide.

 

Thanks, Elsa, for your thoughts.  Have you had experience dealing with language barrier issues while out and about on construction sites?  Share in the comments, below.

 

 

Lessons from a Diner: Up Front Costs can Save You Money in your Engineering Practice (law note)

Posted on by

greekgrilled.jpgI happen to frequent a place in my hometown called Elmo’s Diner.  A lot.  As in, many of the servers know me by name.  The food is good, yes.  The selection is great.  But there is a much more important reason that I go there over and over again– the service.  Elmo’s seems to always have enough staff on hand, and they also work together to make sure your wait is never very long.

There are some other places in town that skimp on hiring waiters and waitresses.  I guess they figure, the fewer they have working at any one time, the less money they have to pay out.  Even though, of course, waiter minimum wage is much lower than regular minimum wage due to the tip factor.  But some of these other places (who shall remain unnamed) really do seem to have the mindset that they will save money by not hiring enough staff for the number of customers.

Maybe that thinking works for them- in the short run.  Do you know how much money I spend at Elmo’s Diner?  Let’s just put it this way– I really should invest in direct deposit with them!  These other places?  I forget, and go to them every now and again, thinking, it can’t be all bad, right?  And almost always, I remember why I do NOT go to them.

Now, back to construction.  Many professional service firms are like the unmentionable restaurants above– they skimp on things that “cost money”.  Notably, in two areas (1) professional liability insurance (errors & omissions coverage), and (2) getting legal assistance at the beginning of a project.  These architects & engineers are making the same short-sighted mistake, thinking they are “saving money.”  And yet, very often, in the long run they are costing themselves money– in contract disputes, legal wrangling at project end, or in paying out of pocket for large claims.

You should have E&O insurance if you are a working professional.  Period.  You should also have your contracts and proposals reviewed by a lawyer.  Preferably, before any major new undertaking.  The up front costs are small, but the impact can be huge.  Just ask anyone at Elmo’s.

Your turn.  Are there places that you frequent because of their superior service?  Do the extra costs seem to pay for themselves over time?  Share below.