Latin lessons

July 2012 » Columns » PROFESSIONAL PRACTICE
John P. Bachner

Cogito ergo sum —€” —€œI think, therefore I am.—€ Rene Descartes proposed that people really exist, given that thinking and being aware of one—€™s own thoughts —€” as opposed to merely reacting instinctively —€” are hallmarks of intelligent life. Except, of course, when it comes to some of the contracts you—€™re asked to sign, crafted by attorneys focused on protecting the interests of their clients.

However, as psychologist Abraham Maslow put it, —€œIf you only have a hammer, you tend to see every problem as a nail.—€ Lawyers—€™ hammer is contract law, and that—€™s what they use to protect their clients. But it—€™s really inadequate. Consider the typical provisions through which a client uses its contract to say to the civil engineer:

  • You must carry professional liability insurance with at least a $5 million limit (because we—€™ll allege you were negligent if something goes wrong and we want you to have deep pockets).
  • We won—€™t accept your limitation of liability (so we can sue you for millions even if your fee is $5,000).
  • You must meet the highest level of care (to give us a better basis to sue you if something goes wrong).
  • You must make us an additional insured on your professional liability insurance policy (to give us uncontestable protection).
  • We want you to waive subrogation (so your insurance company loses the right to seek recovery from us, even if we were solely at fault).
  • You have to indemnify us from any negligence committed by anybody, including us (so you can be our free insurance policy).

So, from a client—€™s perspective, what—€™s wrong with the provisions (aside from the fact that some of them are just plain stupid)?

First, some of them transfer the client—€™s risk to the consultant. Because the consultant comprises people, and because many of these people must bear some or all of a risk personally, the project team—€™s focus shifts from doing a great job to not doing anything that could lead to a problem. How to deal with that risk? Simple: Just recommend by-the-numbers approaches; do not innovate, no matter how much time and money it could save.

Second, and even more important: Every one of the provisions has value only if problems arise. Not one focuses on preventing problems, and that can be a costly omission because recovery often requires litigation and litigation takes a lot of time and money.

Fact: Lawyers—€™ don—€™t possess the tools needed to prevent the problems their contracts are designed to solve. Civil engineers with experience —€” those who intimately understand the type of project and client in question and who can anticipate the kinds of risks that could materialize —€” do have the tools. They can help clients develop scopes of service designed to manage risks while incorporating highly cost-effective time- and money-saving approaches to achieve trouble-free high quality.

But client representatives are not going to trust your guidance as much as a lawyer—€™s unless you can earn their respect. This means you have to put yourself in front of them, via trade associations, business groups, professional societies, and other organizations. And then, once you do get an assignment, you—€™ll need to demonstrate you have what it takes to execute it well. After you do that, you—€™ll need to demonstrate you really care by getting actively involved with the client and its representatives between projects.

If you are unwilling to make that kind of commitment, then be prepared: You—€™ll still deal with client representatives who exist because they think, but you know what they—€™ll think when they look at you? Another Latin phrase comes to mind: caveat emptor.

John P. Bachner is the executive vice president of ASFE/The Geoprofessional Business Association, a not-for-profit association of geoprofessional firms —€” firms that provide geotechnical, geologic, environmental, construction materials engineering and testing (CoMET), and related professional services. ASFE develops programs, services, and materials that its members apply to achieve excellence in their business and professional practices. He can be contacted at john@asfe.org.


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