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.
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David Brotman FAIA
Past AIA Regional Director
Scottsdale AZ
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