Be nice

November 2009 » Columns » RISKY BUSINESS
John P. Bachner

At least one of these “Risky Business” columns each year focuses on the concept that civil engineers are in the “people business” and need to focus on the needs of the people they serve. Client representatives are particularly important because they provide opportunities to serve and they authorize payment of bills. Clearly, they are worthy of good treatment and, just as clearly, not enough design professionals are providing it, given that owners — their direct and indirect clients — file about six of every 10 negligence claims against design professionals.

Contractors’ representatives are also important and worthy of respect. The failure to provide it may explain why contractors file two of every 10 claims against design professionals. And the remaining two of every 10 claims could be reduced significantly if design professionals enjoyed more of the trust-based relationships with owners and contractors that result in better contract terms and conditions, better scopes, and better fees.

For whatever reason, my “people business” columns seem to elicit greater response than others, almost always from readers who attempt to justify what many owner’s and contractor’s representatives probably regard as professional aloofness. Their comments usually take the form of, “The quality of my work speaks for itself. I’ve never tried to become ‘buddy-buddy’ with client and contractor representatives, and I’ve never been sued.”

First, risk indicates the odds of something bad happening. Low-risk describes unfortunate events that rarely occur, such as a plane crashing into someone’s home. What’s the risk of your being sued by an owner or contractor or people associated with them? Pretty high, as it so happens, and the fact that it hasn’t happened doesn’t mean it won’t.

In his book, “Blink: The Power of Thinking without Thinking,” Malcolm Gladwell writes about a prominent medical-malpractice lawyer who told him that patients tend to sue physicians who treated them poorly on a personal level — who ignored, rushed, or talked down to them. By contrast, no matter how badly many patients have been harmed by medical mistakes, they will not sue physicians they like. Gladwell also reports the findings of medical researcher Wendy Levinson, who recorded hundreds of physician-patient conversations. Half of the physicians had never been sued; the other half had been sued at least twice. Levinson discovered that those who had never been sued spent 20 percent more time with their patients, and were far more likely to exhibit active-listening skills. Importantly, those who had never been sued didn’t give their patients more or better information; the difference was not in what they said, it was in how they said it.

As for the quality of your work being a substitute for the quality of your relationships, wake up! Even if such a thing were possible, the fact is that most people who look at what you prepare have no way of evaluating its quality. And those project participants who can will seldom agree, because most of them define quality in their own way. Besides, most negligence claims aren’t related to quality issues; they’re related to money issues. Design professionals become targets when they’re vulnerable — when they have deep pockets (through insurance or other means) and lack the ability to present an open-and-shut case to a trier of fact who has little or no understanding of what design professionals do, and little or no ability to differentiate one expert’s testimony from another’s. And design professionals are particularly vulnerable when they have no strong allies within a client or contractor organization; no one to say, “Let’s not sue John. He’s done a great job for us over the years. Let’s try to work it out some other way.”

I am not advocating that you become buddy-buddy with client and contractor representatives, especially so because your buddies might not always treat you with respect, and they’re sometimes afraid to get down to difficult issues. But certainly you can communicate with them as a professional by demonstrating that what they have to say is important to you, that you want to learn what they’re trying to achieve, and that you really want to help them achieve it. You should want client and contractor representatives to realize that you are not aloof or overbearing. You should want them to be delighted with your service, in large part because it’s not at all apparent that delighting them is something you are consciously trying to do; it’s just who you are. And do not for an instant believe that who you are makes no difference.

Thousands of physicians who frequently make mistakes never get sued, while some of those who are technically the best at what they do get sued multiple times. I’m not suggesting that committing errors doesn’t matter; it does. But when errors occur, as they inevitably will, having a relationship can mean the difference between resolving them amicably and moving on, or having to defend a lawsuit.

Deal effectively with your risks: Be nice!

John P. Bachner is the executive vice president of ASFE, a not-for-profit association that provides programs, services, and materials to help geoprofessional, environmental, and civil engineering firms prosper through professionalism. Visit ASFE’s website at www.asfe.org


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