Engineering Inc. - July/August 2009 - (Page 19)

Guest COLuMN NOT A JURY OF YOUR PEERS By Al Rabasca Plaintiffs’ attorneys can often seem confused about design professionals’ roles and responsibilities on a project. But just wait until you meet the jury. Though plaintiffs’ attorneys may feign ignorance in their allegations for strategic purposes, juries, for the most part, are ignorant about what design professionals do. The role of design professionals is not clear to the general public who make up juries. It’s not part of their cultural DNA, and subsequently, they are not a jury of your peers! When dealing with allegations of professional negligence, the standard of care (SOC) is not the “reasonable and prudent man” test used to determine whether an individual should have foreseen the consequences of an action. Rather, the test is: Did the design professional perform the services consistent with the professional skill and care ordinarily provided by design professionals practicing in the same or similar locality under the same or similar circumstances? Experts can make arguments for both sides. Understanding the nuances of those arguments regarding the SOC is often beyond a jury’s capabilities. Think about it. Al Rabasca Most jurors have a fairly good understanding of what certain professionals—say, doctors, even lawyers—do, because they interact with them during the normal course of their lives. This, however, is not often the case with design professionals. Other professions are represented quite clearly and often in our popular culture in novels, movies and television shows. They are part of our cultural DNA and, as coined by Carl Jung, our collective unconscious. Many of us know the lore of Marcus Welby, Dr. Kildare, Ben Casey, Perry Mason and even the evolving cast of Law and Order. But when was the last time you read a novel or saw a movie or television show about the intrigue and drama of engineering or architecture? The bottom line is that a jury is much less likely to understand the SOC parameters for the design professional than those for other professionals. Accordingly, there’s an excellent chance that your contract will give a jury its first and only impression of what design professionals really do. Hence the extreme importance of a well-crafted business agreement. Although you can’t control what a plaintiff might Why contract language is so important when facing a jury allege, you can have a significant impact on enhancing your defenses and mitigating your exposure with clear and concise contract language. For the most part, the general public believes, albeit incorrectly, that design professionals are responsible for the majority of what happens on a project, including construction means, methods, safety, ensuring that the contractor follows their plans and generally “doing the right thing.” With a contract you are, in essence, educating the judge, your client and the jury as to what a design professional does and does not do. Consider this: Would your mother understand your contract and your role as a design professional on a project? (I’ve spent 30 years in this business, and my mother still has only a vague notion of what I do.) Think in terms of your own family and nonprofessional friends and acquaintances when describing the scope of services in your contracts, because these are the potential jurors. They have a very limited, almost nonexistent common reservoir of experiences with design professionals. If they don’t get it, neither will the jury. Consider your contract as a teaching tool, and the next time you consider a scope of services to provide, think of your mother, and maybe even the guy who sells you your newspaper—and ask yourself: “Would he or she get it?” This column does not go into detail about specific, appropriate language for contracts, because every contract is different. But knowing the philosophy behind the language may prove as valuable to the contract review as the language itself—and bring clarity to the process the next time you’re putting pen to paper. n Al Rabasca is director of industry relations for XL Insurance’s Design Professional group. the information in this article is provided for educational purposes only and is not intended to constitute legal advice. If you require such advice, please consult with your own legal counsel. ACEC is not responsible for, and expressly disclaims, liability for any use of, reference to or reliance on information contained in this article. July / August 2009 ENgINEERINg INC. 19

Table of Contents for the Digital Edition of Engineering Inc. - July/August 2009

Engineering Inc. - July/August 2009
Table of Contents
From ACEC to You
News and Notes
Market Watch
Legislative Action
Cover Story: Sen. Barbara Boxer (D-Calif.)
Holding Court
Guest Column
2009 ACEC Professional Liability Insurance Survey
2009-2010 Executive Committee
2009 Fall Conference Primer
Members in the News
One On One

Engineering Inc. - July/August 2009