Nobody dies in a construction dispute. At least most of the time!
However, just as the usual “thunk-thunk” chord in Law & Order warns the viewer that something is awry, there are warning signs that your construction project may be under similar dire straights. You should recognize these signs for what they are—early-warning lawsuit detection devices. Signs that a lawsuit may be in your future include:
The “everything has gone wrong” situation. This one is fairly big and obvious, but it bears mentioning. If the project is delayed, over budget, and there are signs that the owner is looking for someone to take the fall, watch out.
Much more subtle, but equally troubling, is the “start acting squirrely” syndrome. If you have always had a good working relationship with the general contractor, but suddenly he is aloof, watch out. If the owner is usually friendly and free with the flow of information, and he suddenly begins to clam up, be concerned.
The “let’s document everything” protocol. Now, as a lawyer, I feel duty bound to tell you that I think documenting everything is best management practice. However, I do know that most normal folk don’t usually behave this way 24/7. So, if you are on a project where a contractor likes to write letters to the file almost as much as he does change order requests, be leery. Could be he just listens well to his lawyer’s proactive advice to document everything. Or, could be he is preparing a case from the get-go to claim design failures, construction administration delays, and the like. How to tell the difference? Often, you can only go with your gut. But take note—is Mr. Letter Writer documenting everything, or just items that might be considered “blame-able” ?
The “I’m confused” RFI king. Similar to #3 above, but more specific, the confused RFI king always seems to need clarification or further information about your design. The requests for information flow so fast, you may have trouble responding timely. This may be part of the plan. Or, it may simply be a numbers game— either the contractor is asking RFIs to buy time on the project (often on a case with strong liquidated damages provisions), or he wants to later be able to point out the “excess number of RFIs” to prove “bad design.”
Now that you’ve caught the whiff of trouble brewing, how do you stop it before the dead body smell takes up residence in your car? Observe, document, and respond in kind.
If you are dealing with an RFI king, respond timely, and note when the RFI is asking for information that is readily available on the plans. You might even consider keeping your own running log of questionable RFIs, so you can readily show your lawyer, and a future jury, that although there may have appeared to be a large number of RFIs on the project, the fact was that most of them (X percentage) were questions about something that the contractor should have already known if he had reviewed the plans.
If you have a “document everything” guy on your hands, respond in kind. You should be doing this anyhow, of course, but if you have someone that is especially prone to documenting everything, you need to be extra vigilant that he is not stating anything that is untruthful, that the documentation is complete, and that any time you get a document that doesn’t completely tell “the truth, the whole truth”, that you supplement it with your own documentation accordingly.
If you have a squirrely acting client, you might consider just politely confronting him to ask if anything is going on. It could be something that has nothing to do with the project – internal politics, personnel crises, etc. In which case, you will find that out. If there is something more sinister afoot, you can probably determine that as well. The key here is to ask whoever you are (or had been) close to, and to ask them off the record, in person. You can learn a whole lot through non-verbal body language. If you find out, directly or indirectly, that there may be a claim afoot, then you can proceed accordingly.
If the project has gone to hell in a handbasket, there is not a whole lot you can do, other than to keep ensuring that you and your team are meeting all contract requirements. Part of this should include documentation for the eventual lawsuit, if it comes to that. You might also contact your lawyer or insurance company for assistance behind the scenes—something called “loss prevention”. Remember, reporting the dead body is the first step to clearing the air. It’s the cover up that usually gets folks in trouble.
Now it’s your turn. Drop me a note or comment below to share your own techniques for recognizing possible lawsuits. Next week in the series: the mechanics of being sued. Stay tuned!