A Primer for the New Practitioner on Defending the Design ProfessionalDecember 14, 2010 | |
This article is planned as the first in a series of short articles concerning practice tips in the handling of a construction defect case from initial assignment, through discovery and trial preparation. The focus will mainly be for the newer practitioner (or one new to the field) and I will draw upon my almost 30 years of experience in litigating construction defect cases for architects, engineers, owners and contractors. However, as someone who is still “practicing” to get it right, I readily admit that one is never too experienced to learn, and perhaps some of our more seasoned members may find this of some interest. Over the years I have represented a number of design professionals and the like (architects, engineers, surveyors, safety inspectors, etc.) as well as private owners, municipalities, governmental entities, and contractors in the construction field. I would strongly recommend, to the extent possible, that you seek representations in all of these facets of the field as it will only bring about a greater understanding of the particular issues that arise in defending these cases. Each of these “players” in the construction field obviously has their own interests and to better understand how to defend or represent their interests, there is no substitute for first hand experience in representing each group.
In learning how to defend an architect or engineer, it must be recognized that these clients are professionals just like lawyers, doctors or accountants, and should be treated with respect and as professionals. While all clients deserve respect, it is particularly true with the design professional since they are members of a learned profession. Acknowledging this to the client will bolster your position as their counselor and defender, and help enlist them as your co-workers in defending the case. Often, no better expert exists than your own client in these cases, even if a trial expert is eventually used.
First impressions are always of great importance. Because of this, you should try to educate yourself as much about your client before you have initial contact, whether it be by telephone or meeting. Perform research of his or her practice or firm’s background by doing online searches or employing other sources which may be available. Searching for news articles about the construction project, particularly on municipal projects, may also be fruitful. If you are still drawing blanks, after your initial introductions, immediately inquire about the background of the individual, the firm, and of the project. Understanding your client in terms of his background may be key to learning the strengths and weaknesses of your case as you progress through the process. Perhaps he is an expert in the field involving the case. On the other hand, you may find he was out of his field or expertise or level of comfort.
Equally important is to “sell” yourself and your firm to the client. In short, gain the client’s confidence and be reassuring that the claim will be handled in an appropriate and professional manner. Do not hesitate to explain your background in the field. Clients want to know that they are being represented by a professional with experience in the field and even if you, as a new practitioner, do not have extensive experience, do not hesitate to talk about the experience of your partners or supervisors so that there is a sense of security with the firm.
Above all else, be positive and upbeat about the defense but do not promise any grand slams. Be realistic while cautiously optimistic at all times. For example, if you determine that the case has a clear liability exposure, be candid about where you see the defense of the case will be going, whether towards limiting damages, comparative fault, or seeking a favorable settlement. Bear in mind, most design professional errors and omission’s policies require consent to settle. The client should be kept abreast of all such settlement developments so there are no surprises or misunderstandings when settlement may arise.
Upon receiving a new case or pre-suit investigation, the initial inquiry should also focus on determining the object of the lawsuit. Sometimes this is very obvious but sometimes not. While every case has a plaintiff and a defendant or defendants, some event or occurrence bringing about the suit and a claim for relief or damages, there often are other underlying or related motivations driving the case. For example, many construction defect claims often arise out of a commercial dispute between an owner or a contractor or a design professional with respect to the ultimate cost of the project. Are cost overruns brought about by owner delay or change in plans or are they brought about by design or construction errors? Such themes should be explored and very often become critical in determining what the true nature and object of the case is. Needless to say, the design professional very often bridges the gap between the contractor and the owner and is thrust in the middle. You will discover that design professionals are often included in a case as a fallback position by the owner, anticipating the contractor’s claims of design errors to defend faulty work. Similarly, contractors will seek to implead design professionals to try to share responsibility, or, at a minimum, obtain discovery to form defenses to claims of breach by the owner. Discovery from a party is far easier than from a nonparty.
I look forward to future articles discussing the actual initiation of case management through the initial investigation of the case with the client both through the pleadings and discovery phase.
Reprinted with permission from DRI – Riding the E&O Line. Copyright 2010.