-Partners in Practice -

Few professional liability lawsuits come as a surprise. They tend to start with a problem that will not go away, and they fester and grow over time. Expectations are frustrated, communications break down, tempers begin to flare. These are the conditions that underlie most claims, and the truth is, most can be anticipated months, sometimes years, before they actually erupt in the form of a "Summons and Complaint."

What do you do during those months or years can make a startling difference. Not only can you protect your interests in a positive outcome, you can often avert the worst of all possible outcomes-- the agonizing process of litigation involving you and your firm. Knowing this, it might not be a bad idea to assess how well prepared you are to respond to the early signs of trouble on a project.

The warning signals are all to familiar: a withholding of professional fees; pressure from the owner to make substitutions or take other shortcuts in construction you know to be contrary to the best interests of everyone involved; a contractor faced with irrecoverable construction delays or cost overruns; protracted disputes between the owner and the contractor over change orders you believe to be fair; a serious injury on the job sight. The list goes on and on.

The problem is not so much that these signals are lost on most architects and engineers. It is that so few seem to be willing to step in quickly to deal with the underlying conflicts. There is a natural inclination to duck, hoping the dispute will somehow work itself out, that it will indeed "go away." Instead, Headman's First Law tends to prove itself time and again: "The burying of one's head in the sand usually invites a swift kick elsewhere in the scheme of things."

Overcoming the inclination to avoid dealing with conflict is not easy. Yet if you are successful in doing so, you can accomplish more to avoid unnecessary claims of professional liability than through almost any other, single action. The question is, how?

You can start by making it clear to your staff that the existence of a problem on one of their projects is not an indication of failure. Nor is the fact that a particular problem may be too large for them to handle on their own. Problems are encountered on every job. Some are serious, but manageable; others forecast crisis. "Failure" might be best attributed only to those who wait too long to seek help.

You know from experience the conditions on a job that can easily lead to irreconcilable conflict. Why not communicate that rich experience to the staff? Make it clear that you expect them to seek help in resolving problems early, before they mushroom out of control and lead to disaster for all concerned. Then make it as easy as you can for them to get the help they need.

You might consider assigning clear responsibility for dispute resolution and claims management to a senior person in the office. Ideally, this should be the one with the most conciliatory of personalities, one to whom members of your staff would feel comfortable in turning for help--as soon as they begin to suspect that something on their project is going seriously awry. He or she should also be in a position to take whatever steps might be necessary to get things back on track.

What are those steps? Here is a list you might want to consider adapting to the unique circumstances of your own practice:

1. Keep everyone calm.

   You do not want to admit to responsibilities that may not legally be yours, nor do you want to assess blame or make pointless accusations, either within the firm or without. What you do want to do is maintain balance and avoid precipitous action. Remember, your principal objective is to resolve the dispute equitably and restore effective communications--so everyone can get on with the business of completing a successful project.

2. Keep the lines of communication open.

   It is not necessary to make gratuitous concessions to find out what the situation really is or what the parties believe it to be. Take an open-minded approach, and be prepared to act as a meditor if it appears your intervention may lead to a solution that will put the dispute to rest.

3. Get the facts.

   If the situation so warrants, take photographs as soon after an incident occurs as possible (an injury on the job-site, for example, or a structural failure). Interview witnesses, and gather relevant data (and prepare written records of the information you assemble). This information may not be needed for years, or it may not be needed at all, but there is only one time it can be collected in anything close to its original form--now.

4. Be fair.

   Too often, the fact that you are being paid by the owner leads to pressure for you to side with your client against the contractor. If you believe the owner's position to be unreasonable, you will want to resist the temptation to go along. It can only lead to more serious problems for all concerned, and it will not be helpful to the owner in the long run. You may, instead, have to exercise considerable skill in eliciting a more realistic understanding of the situation: It is true that some problems in construction can only reasonably be resolved with the owner's money.

5. Call in outside help if you need it.

   Oftentimes, it takes a third party to come up with a solution everyone can live with. This might be an independent advisor all can trust, or it may be a technical consultant whose expertise is needed to resolve technical points at issue. If fees are involved, the first task assigned might best be the working out of an acceptable allocation of costs among the parties to the dispute. It may be painful, but the alternative can be worse. Only attorneys profit from litigation.

6. Inform your insurance agent or broker.

   You will want to discuss whether it might not be appropriate for them to notify your professional liability insurance carrier on your behalf. This may be a requirement of your policy of insurance, or it may just make good sense. Some carriers share your concern with solving problems early. Remaining in the background, they will offer counsel and advice aimed at helping you avoid unwarranted claims. This assistance can be extremely valuable, and the insurers who provide it recognize it to be in their interest, as well. Thus, they make it available without charge against your deductible, as long as a claim is not actually filed.

Finally, as you consider how your firm might best respond to problems as they arise on your projects, keep in mind that there are conflicting interests on every job. Your task is to search for solutions that take those interests fairly into account. It is not always easy to maximize benefits and minimize penalties for all concerned, but if you can, you can create the best of all possible outcomes--one that is advantageous to everyone involved.

For inquiries or problems please contact us via e-mail at Earleen Thomas or call us directly at 800-705-7742.
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