Avoiding claims against design professionals is a difficult task considering the changing manner in which business is done, not to mention the changing types of risks contemplated now that never existed not long ago. This makes it difficult to advise clients on what to do and what not to do, but the following is a short list of things I wish my clients would do, no matter how things continue to change.
The first item on the list of the top four non-technical risk drivers, as compiled by a well-known national insurance broker, was communication. Everyone needs to use discretion and care in communicating, whether it be orally or in writing. Given the nature of oral communications, taking care to be clear when speaking about projects can, obviously, go a long way. However, the main challenge these days is convincing clients to take additional steps to achieve clarity in the written word, which typically takes the form of e-mails and text messages. Not long ago, letters were written and letter writing was done very diligently by our clients. Whenever I reviewed letters contained in a client’s file, the care taken, by whomever the author, was evident. Thoughts were concise and clear and naturally invited a response of equal clarity. However, emails have largely taken over as the most popular form of written communication, with text messages also becoming quite popular. The problem with both forms of communication is that emails and text messages are written while walking down the street or while engaged in another activity and the care and thought in writing them are not present. Typographical errors are one thing, but missing words changing the meaning of what you wrote are difficult to undo when a matter is being litigated. With that said, written communication needs to improve as miscommunication is a leading cause of disputes arising out of construction projects.
Somewhat related to the need to take better care in communicating is the need to maintain electronic project records in a systematic way. While some design firms have already employed a system that makes the task of reviewing project documents and electronic communications easy, far more still perform searches of emails to accumulate the electronic communications relevant to a particular job. For larger design firms, this task may require searches at multiple servers located throughout the country, making the formulation of a defense to claims involving the project challenging. If individuals having first-hand knowledge of the project are no longer associated with the design firm in issue, finding all electronic communications becomes even more difficult. However, a software system that collects all electronic communications removes this risk, assuming all employees are well trained on saving electronic communication to the electronic project file and company-wide diligence is maintained.
Also high on the list of non-technical risk drivers referenced above is to be honest with oneself about what the design professional and her team can provide in terms of talent. In the eagerness to obtain new work, the design professional, like most people, tends to take on projects that may go beyond the firm’s capabilities. Inexperience with the particular type of project or jurisdiction, while qualified and fully licensed on paper, may be reason to take a second look to make sure the design professional is comfortable with taking on the new project. This requires one to assess oneself in a critical way that could very well keep the design firm moving forward without taking on unnecessary risk.
Finally, haphazard client selection is a recurring factor that can put design professionals into litigation in situations where a different client would have invited problem-solving input from the design professional without litigation. The problem is: how do you know that before the project starts? Here are a few factors. First, check around to determine if the client is experienced with the type of project being contemplated. Second, check to see if the client has a history of litigation, not paying contractors or design professionals, or is behind on paying fees on other jobs (or on the current job, if the design professional is being asked to take over for another architect). A simple search of the local court system may reveal the answers to these questions. While taking on new work with a new client always has inherent risks, undue risk can be avoided.
The four general areas described above are things the design professional should try to incorporate or at least think about to avoid risk or better manage risk. As the business world continues to change, these are things that will likely continue to be important no matter what the future holds.