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This is Really Important: Read It

  • 1.  This is Really Important: Read It

    Posted 07-25-2018 17:04
    Let's talk law suit.  Have you ever been confronted with one?  It's no fun for an Architect, who's a defendant.  While most Architects have avoided this experience, it appears as if we are confronted more and more with this unwanted happenstance.

    So why is this happening now.  I'm not sure that anyone has a definitive answer.  There could be a lot of reasons, the least of which are savvy Clients.  In the retail market place these Clients tend to be sophisticated corporations.  Generally, they are in business to make a profit.  Project development is a means to this end.  There are many aspects of the development process that are focused on the profit motive.  Architects and their insurance policies have increasingly become a profit motive target.  In recent years there has been a flurry of law suits against Architects, undertaken by creative lawyers and profit hungry Clients.

    Unfortunately, Architects are notorious for negotiating poor contracts with fees that are too low.  Add this to the fact that technically savvy Architects are becoming a rare bread.  No one wants to spend the time necessary to learn what it takes to build a building.  Young Architects today want to be instant designers or project managers.  Consequently, quality control in an Architect's office is very often nonexistent.

    Architects tend to accept contracts that put them at risk.  My experience has been that very few Architects are willing to take the time to understand what the implications are of what they are signing.  They sometimes rely only on their lawyer to take on these negotiations.  A lawyer is not an Architect and does not have detailed knowledge of what it takes to put a building together.  Yes, they can make sure that the language covers you from a legal aspect.  But they are not supposed to be responsible for your business practice, as stated in the contract.  That's your job.

    There are a series of clauses that Owners like to sneak into contracts that expose Architects to huge liability.  One of my favorites is the contractual imposition of a schedule for shop drawing review.  Typically, the Owner wants to include wording that requires the Architect to review shop drawings within a two-week period.  On its surface this sounds reasonable.  However, it is not uncommon for huge packages of shop drawings to be submitted at the same time.  It is unreasonable to expect such large packages to be reviewed in a two-week time frame.

    So what difference does this make.  If everything else is running smoothly, it shouldn't much matter.  But what if the project has gone south.  The Contractor is way behind schedule.  In the ensuing lawsuit, the Contractor blames the delay on the Architect's breach of contract for taking too long to review shop drawings.  This in turn causes the Contractor great expense.  In addition, the Owner has incurred significant loss of income due to the delay.  Guess whose fault this all is, the Architect who didn't follow the contract.  A good lawyer can make mincemeat out of an Architect's testimony trying to explain this away to a jury of teachers, postmen, etc., who don't have a clue of what it takes to design and build a building.

    The real crazy thing is that even with a difficult contract, very few project managers are given the opportunity to read it for their project.  It's unheard of for any of the other team members to read it.  This just blows me away.  It's like preparing a fancy meal for the first time without a recipe.  It's not likely to taste very good.

    During the course of a project there are situations that occur that put the Architect further behind the eight ball.

    For example, an Owner, who thinks he is a construction expert, especially when it comes to pricing.  The Architect has been hired to provide a biddable set of Construction Documents.  Sometime, during Schematic Design and Design Development, the Owner decides to select a Contractor based on Design Development Drawings.  In an effort to reduce the schedule the Contractor and the Owner decide to bid early foundation and structural packages.  Turning the project into a fast track delivery.  The design contract says nothing about the implications of fast rack delivery.  Of course, the inevitable happens.   Coordination suffers requiring costly changes as the documents are completed.  Invariably, it is common to find information lacking in the documents which affects cost.  Who does the Owner blame for screwing up?  The Architect, after all there was nothing in the contract that warned the Owner of results due to fast track.

    What gets Architects into real trouble is when they let the Owners ride roughshod over them.  For example, the Owner decides that the construction cost is too high.  So, the Contractor does some "value engineering".  The problem with value engineering is that all you have is the Contractor's educated guess.  To get the real cost the Architect needs to revise drawings in order to get a firm price.  Now the Architect is afraid to confront the Owner for additional fees to make the changes.  Usually, this is left for a later discussion leaving the Architect no leverage.  Of course, after the documents are done and repriced the savings is no where near the estimate.  Again, the Architect's fault, since she prepared the drawings.

    Another example is an Owner who wants to make changes half-way through Construction Documents.  Of course, the Owner sees no reason for the schedule to change and no reason for additional fees.  Very often the Architect agrees on an insufficient schedule making it impossible to provide a complete set of documents on time.  The result is lack of coordination and insufficient information resulting in Change Orders.  Who's to blame, the person who didn't demand sufficient time and fee to do the work.

    Technology, while providing great help to the Architect, also has hidden pitfalls.  One of the most dangerous things that is used indiscriminately during design and construction is email.  Email has taken the place of conversation.  The difference is that conversation is not generally recorded and therefore a record of it is lost after it occurs.  Email lives forever.

    I serve as an expert witness for construction claims.   When I start working on a case, the first thing I want to do is review emails.  In a case for damages due to lack of coordination and delays against the Architect, emails provided damaging evidence of the Architect's negligence. The file was replete with emails from the Architect to the Engineer, who was being berated.  The Architect was extremely critical of the Engineer for not having enough manpower to meet the schedule.  The emails included criticism of all parties regarding lack of coordination.  The Jury just ate this stuff up.  It is important to remember that the world might see your emails someday. So be careful what you commit to paper.

    Courts in some instances are agreeing to hear cases where the Contractor is suing an Architect.  But how can this be?  The Architect's contract is with the Owner not the Contractor.  Lawyers are trying to make a case that a Contractor without a direct contract with an Architect could still be successful in a negligence lawsuit if the Contractor is completely dependent on the Architect's design and drawings and is not able to take steps to prevent the consequences resulting from having used those project documents.  If this takes hold it will have a far-reaching effect on the Architect's ability to guard against negligence.

    Owner's "unfulfilled expectations" are playing a role in the Architect's liability.  For example, the completed project has a heating bill that the Owner considers too high.  What does he do?  He sues the Architect for being negligent in designing the HVAC system causing the high cost. As an Architect you have to realize that the Lawyers are looking for any opportunity to get you.  You need to remember that your design of a project is a business deal.  The Owner is your Client, and the Contractor is the builder.  They are not your friends.  They are business entities, who are looking out for their own well-being, as you should be yours.

    I have often said that experiencing an arbitration or law suit should be a required part of a young Architects education.  Sitting in one of these proceedings for a day or two makes you a better architect.  Having to give testimony and being cross examined changes you.  Suddenly you see the importance of the wording in the contract and the Standard of Care that is expected of you.

    It gets harder and harder to practice Architecture because of outside forces.  Don't be deterred by this.  If you make yourself sensitive to these outside forces, there is no reason why you can't be a successful Architect.



    ------------------------------
    David Brotman FAIA
    Past AIA Regional Director
    Scottsdale AZ
    ------------------------------


  • 2.  RE: This is Really Important: Read It

    Posted 07-26-2018 22:24

    Well done treatise David, thanks for posting it.  I suspect many that would benefit from your comments are not on KnowledgeNet ... hopefully you'll find some additional platforms to share these insights.

    Cheers

     

     

    Michael F. Malinowski FAIA

    President, Applied Architecture Inc

    2550 X Street Sacramento CA 95818

            

     






  • 3.  RE: This is Really Important: Read It

    Posted 07-27-2018 00:01
    David - many thanks for such a important post.  Being part of two law suits early in my career (one as a "friendly" witness defending a former employer for a roof leak, the other defending my own firm against an HOA for a design completed by a partner who was no longer with the firm when I joined) were indeed invaluable.  One of the lessons, as you point out, is that the architect (and other parties with supposed deep pockets) will get named in legal proceedings regardless of their actual negligence.  And insurance companies are your allies until they are not. But with good risk management practices, careful client screening and a strong QC program, firms can prosper without sacrificing innovation.

    ------------------------------
    Michael Strogoff, FAIA
    Chair Emeritus, PMKC Advisory Group
    President, Strogoff Consulting
    Mill Valley, CA 94941
    ------------------------------



  • 4.  RE: This is Really Important: Read It

    Posted 07-27-2018 20:00
    Mr. Brotman,

    Your post about law suits, liability, and risk management for Architects makes a lot of good and important points, and as an AIA Fellow you certainly speak from a position of experience. That said, I am concerned that your piece reads more like a rant from a frustrated professional than a constructive treatise on the subject to share with AIA colleagues.

    Law suits and risk management have been mainstream issues Architects have had to deal with for decades and we need to continue to improve our knowledge and practices to offset real business and legal risks. Emerging professionals and fellow Architects need to hear your message, I only wish you could avoid the "scared straight" tone and instead craft a poised treatise on the subject.

    Resepectfully,




    ------------------------------
    Ronald C. Weston, AIA, LEED AP
    Vice President
    PS&S
    Warren NJ
    ------------------------------



  • 5.  RE: This is Really Important: Read It

    Posted 07-30-2018 19:21
    Ron,

    Thank you for your comments.

    Let me see if I understand you correctly. You want me to take an approach that won’t scare the pants off of our brethren. Maybe so they can continue to be as complacent as they typically are about the importance of contracts and enforcing them.

    It’s interesting that you accuse me of ranting about actual things that our profession is experiencing. Unfortunately, I have found over the years that problems are not addressed unless you get the audience’s attention. Vanilla statements are not as affective to this end as hitting someone over the head.

    For example, if the building was on fire you wouldn’t yell “conflagration”, I think you would yell “FIRE”.

    In any event I welcome your comments even if, for some reason, you feel a need to only address my delivery rather than the subject.

    Sent from my iPad




  • 6.  RE: This is Really Important: Read It

    Posted 07-30-2018 18:08

    The broad nature of an architect's work makes everything potentially relevant to the architect's scope, unless the scope is carefully qualified. Contractors and trade subcontractors do this every day when they submit bids or quotations on jobs. They have learned to qualify their price by carefully pointing out what is excluded. Architects don't routinely do this, in part because they are concerned about losing the potential client, and in part because they don't take the time to figure out what they will not or cannot provide, for the fee they propose. When something goes wrong and there is a dispute, everyone refers to the contract language to assign blame. The more expansive the contract language, the easier it will be to make the architect responsible for what went wrong.

     

     



    Mehrdad Farivar, FAIA
    Member

    C
    LARK HILL LLP
    1055 West Seventh Street, 24th
    Floor | Los Angeles, California 90017
    (213) 417-5108 (direct) | (213) 488-1178 (fax)
    MFarivar@ClarkHill.com | www.clarkhill.com



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  • 7.  RE: This is Really Important: Read It

    Posted 07-27-2018 14:22
    You are right on all counts.  I had a situation where the architect was not retained for construction phase administration.  A critical substitution was made without the architect's approval upon the basis that the manufacturer guaranteed (in Writing) that his product would perform as specified.  It did not.  The manufacturer repudiated his guarantee trying to say the author of the guarantee had no authority to issue it.  The court disagreed with the manufacturer.  The manufacturer appealed. The Owner and Contractor, who were friends, admitted in deposition that neither had any intent of following the construction documents, they just had to have something for the basis of application for building permit.  The cost consequences were huge and the case went on appeal after appeal for five or six years until a "global settlement" was reached whereby everyone involved on the project paid regardless of whether fault could be proven.

    ------------------------------
    Donald Trail AIA
    Architect
    Donald F. Trail, Architect
    Spokane WA
    ------------------------------



  • 8.  RE: This is Really Important: Read It

    Posted 07-30-2018 18:07
    Thanks for your excellent post, Mr. Brotman.  I too have served as an expert witness [in helping to defend fellow Architects against unwarranted litigation] and I disagree that that your dissertation reads like "a rant from a frustrated professional". From my perspective, your post is a dose of reality that our profession needs to see more of.

    In some regards, we are our own worst enemies, as too many architects agree to onerous and unreasonable contract clauses that seek to modify the standard of care into a "standard of perfection", while at the same time shortening delivery schedules and negotiating fees that are unrealistic.  Architects need to factor in some measure of reward for the risk [on top of a base fee that is about time].

    As a profession, we need to mitigate risk through thoughtful contract language that affords a reasonable limitation of liability, and that refuses to assume consequential damages or unreasonable indemnification that goes beyond negligence that is predicated on the Standard of Care. Unfortunately however, some states [e.g. the State of Washington] have removed the Economic Doctrine in favor of "Independent Duty" - that in theory expands liability to third parties with whom the Architect has no contractual agreement.  

    Having recently attended the most recent AIA convention in NYC, I was surprised to see so little focus on mitigating the risk that Architects face on every project - thank you for taking the time to share your thoughts, I would encourage you to keep it up!

    Best Regards,
    Blaine Weber, AIA

    ------------------------------
    Blaine Weber, AIA
    Weber + Thompson LLC
    Seattle, WA
    www.weberthompson.com/
    ------------------------------



  • 9.  RE: This is Really Important: Read It

    Posted 07-30-2018 18:34
    Mr. Brotman et al,


    I believe that was an excellent post.  Let me add two observations and a supporting statement..

    1. Our state requires full services headed up by a coordinating prime professional with all professions engaged to the end of construction. Although our firm will not provide anything other than full services, we observe large inconsistencies from project to project and firm to firm.

    2. I have served as an expert witness where another architect has been found to be at fault. I have only done this if the case appears to be an egregious act of incompetence; and I have no prior connection with any of the parties.  But I will, if I believe it is for the good of the profession.  For instance, in a neighboring state, a licensed architect certified monthly pay applications  and the final payment (where it says, "Based on on-site observations … the Architect certifies to the Owner that to the best of the Architect's knowledge, information and belief the Work has progressed as indicated, the quality of the work is in accordance with the Contract Documents, and the Contractor is entitled to payment …") without personally observing construction progress; while at the same time, an architectural intern in his office was filing reports, one of which had this statement, "apparently, some columns are missing".  Obviously, there were problems at the end of the project and the building owner won the suit.

    As professionals, let's remind ourselves to not make it so easy for the public to find fault with the profession.  We've worked long and hard to get to where we are.

    ------------------------------
    Robin Miller AIA
    MSH Architects
    Sioux Falls SD
    ------------------------------



  • 10.  RE: This is Really Important: Read It

    Posted 07-31-2018 20:12
    I enjoyed this post and the responses. As an architect with an MBA, and as a forensic architect and expert witness representing defendants and plaintiffs, architects, engineers, developers and contractors, I am intimately familiar with these issues. I would like to offer two ideas on the subjects in the thread, each corresponding to the two kinds of risk which exist in any architectural practice, and in fact, in any business; liability risk (risk of legal action) and financial risk (risk of failing to be profitable).

    My observation relative to liability risk, from my twenty-five years in architectural practice and five more in forensicsis, is that architects spend a lot of energy avoiding risk, and then are confused when they are named in a legal dispute, believing that they should be absolved, or are protected by crafty language in their contracts. In most cases architects are named in suits not because they have deep pockets, but because it is in at least one of the other parties' interest not to have an empty seat, meaning that if the architect is not named in the suit, then he will be blamed without the opportunity to defend, which changes the likely verdict for one of the other parties. Regardless of the outcome, the architect is dragged along and his insurance carrier spends a lot money in defense even if he is not the primary target of the suit.  It is not likely that any architect will get a client to include an indemnity clause in the contract language to protect us from that situation. We take this risk whether we like it or not, yet most do not understand this fact and so do not demand a fee structure appropriate for the liability risk we take. We architects need to abandon this policy of risk aversion and take another approach altogether, which brings me to my second point.

    I think the most significant theme, with the greatest potential impact to the profession, greater than liability risk, is financial risk. If architects were better at understanding risk and quantifying risk they would also be better at managing risk, and managing risk is the activity that is compensated in any industry or business. Let me phrase that more simply, compensation and management of risk are proportionate in any efficient industry.

    There are numerous ways that architects can become involved in the active management of risk, and reap the rewards of successfully doing so. I am interested in hearing from others who have ideas about how to do so, if anyone else cares to offer them.

    ------------------------------
    Alan Burcope, AIA, MBA, LEED-AP
    Senior Forensic Architect
    NV5, Inc.
    Orlando, FL
    ------------------------------



  • 11.  RE: This is Really Important: Read It

    Posted 07-30-2018 18:39
    I've done a lot of expert work over my career; Construction Defect litigation support.  I haven't seen much in the way of contractual issues, but that may be the attorneys I deal with.

    The most common lawsuits I see against architects are just quality control; Details that aren't ever going to work and sure enough.. leak.  Ignoring other design professionals, particularly geotech requirements like slab heave or structural deflection when detailing are another place I regularly see issues.  Related are poor specifications or details utilizing products where they shouldn't be used or in a manner that doesn't work. Example would be flat stucco caps.  Omission of details I don't see much since the GC and most contracts have a way to ask questions (RFI's), so if they didn't ask and did their own thing, the architect couldn't give proper clarification.

    Other areas I've seen are where architects take on responsibilities and gives direction in areas not assigned by contract; An example may be not only finding the geotechnical engineer for the owner to hire, but telling them what test to order and where to take borings.  The result may be a foundation issue gets tracked back to the architect as the source.  I do understand as a profession we want to be helpful, but there are times where you need to be careful about phrasing where you are asking questions or questioning another professional instead of directing their work.  I've seen architects direct other engineers like mechanical to use systems that won't work in that situation or select structural systems with inherent problems and complexity ill suited to that project.

    A common issue is making far reaching design decisions with risks.  Example; Ignoring a geotech recommendation (like structural floor) you know doesn't work with the owner's budget, but instead of letting them decide, you direct the design team to do what you think works with the budget and carries a risk... when there is a problem, because you never discussed the risk, the owner goes into court honestly saying he didn't know there could be an issue or that there was another way to do that.  Normally all it takes is a frank discussion with the owner on that issue to 'get out of jail free'.  hint; meeting minutes.

    On the flip-side; I have seen architects get dropped off lawsuits because they asked the question where they saw there might be an issue. An example might be an owner hiring a geotech and getting just a pit test in one location.  The architect raises the flag that this sort of test may not be adequate and doesn't provide enough to base the foundation upon and is told by the owner that is all they are going to get.  Just questioning can often shift the liability of these choices and meets the standard of care.


    ------------------------------
    Christopher Fisher
    Principal
    Fisher Associates, PC, Architects & Engineers
    Littleton CO
    ------------------------------



  • 12.  RE: This is Really Important: Read It

    Posted 07-31-2018 12:25
    I have known David in my former life in southern California. Los
    Angeles Chapter AIA, Int'l Committee, etc, etc, etc. He is giving good,
    sage advice.
     
    My comments here are not to repeat, but to emphasize David's points.
    About the word "notoriously"! Architects and other A/E design
    professionals as well, are "notoriously" poor business people. And, much
    earlier in my career I recognized this to be true and realized that this
    practice of ours was/is not all about the Design!
    Sooo.....I concentrated on and still am, developing and providing A/E's
    et al with Training and Professional Development programs focused toward
    the emerging and middle management professionals. It's about the
    business aspects of our profession.As David said we don't get this stuff
    in the 'A" schools.....but we should and advocate for this to happen.
    Now is too soon.
     
    Lawyers. Select/associate with lawyers who are savy in the design and
    construction processes and are not prone to clutter the contracts with
    word weaseling anticipating litigation. It should be what you will do,
    what the Owner will do, the time line, for how much, with no warranties
    or guarantees as well. Maybe over simplified?
     
    Project Managers. The new designation is "Project Owner".... who is
    designated by the firm to lead the whole of the Owner's Project from
    marketing to the hand-over. Everyone works for the PO, even the
    Principals!  The PO orchestrates from initial presentation, manhour work
    -ups,  which become the schedule, translates to Fee....  leads the
    production....to close out. Constantly communicates with the Owner and
    is aware of the good, bad and the ugly about to happen. recognizing when
    changes happen and to discuss and negotiate additional services
    appropriately. Project Management is anticipatory not reactive!
    Ergo....this business and management practice most likely will reduce
    the incidences of  the subject..... law suits.
     
    Value Engineering. True VE is conducted by and independent consultant:
    includes exercises to evaluate the right fit, right materials, right
    equipt. life cycle etc. Contractors will urge a VE exercise but in
    actual fact is a cost reduction hunt. After which the A/E should propose
    and submit their respective Additional Services proposals....fee and
    schedule included.  This covers changes!!!!
     
    E mail. Advise all staff to minimize (may not be able to eliminate) e
    mail communications among the office staff , the consultants,the Owner,
    the Contractor, etc., regarding work effort, schedule or project related
    problems. Make phone calls then memorialize for the paper file, delete
    the electronic ....don't save! Investigators will come to your offices
    and take away your computers, etc.
     
    We all need to be better business people and not be the target of the
    profiteers. As well, making money are not dirty words!  Let's be careful
    out there!
     
    Last word......to have better self esteem...for ourselves.....stop
    referring to our practice as "The Industry". We are Professionals.
     
    Charles P. Lazarou AIA




  • 13.  RE: This is Really Important: Read It

    Posted 08-01-2018 17:38
    Thank you Mr. Brotman and all who contributed additional responses.  I agree, this is Really Important.  I read it and now I'm having everyone in the firm read it - including our interns.

    ------------------------------
    Jerry Berggren AIA
    Berggren Architects
    Lincoln NE
    ------------------------------



  • 14.  RE: This is Really Important: Read It

    Posted 08-02-2018 18:13

    You might want to check with your Professional Liability Carrier too.  Mine provides excellent free webinars on risk management which is a convenient way to educate staff, and incidentally reduce your insurance premium if a certain percentage of staff have attended.

     

    DFT/Mika