Communicate Right: Communicate and Write

For this week’s Guest Post Friday, we welcome back Melissa Dewey Brumback.  Melissa is a North Carolina construction lawyer and a partner at Ragsdale Liggett in Raleigh. She mostly represents architects and engineers in construction-related lawsuits. She also guides owners, developers, general contractors, and designers in drafting effective, efficient contract documents to minimize risk before projects commence. She can be reached at her blog, www.constructionlawNC.com, at mbrumback@rl-law.com, or at 919-881-2214.

The single biggest problem in communication is the illusion that it has taken place.

George Bernard Shaw

Communication in this day and age happens fast and often. Or does it? Problems can arise when people misunderstand one another. On a construction project, such misunderstandings can lead to multi-million dollar damages. With proper communication, however, you can stop a problem from becoming a lawsuit.

Ideally, on a construction project, a perfect set of plans is issued, the Project is staffed with well-qualified, organized subcontractors, the Owner is timely and responsive, and the Project is completed on time and under budget. Does that even remotely sound like a construction project you’ve worked on? Not likely. Instead, THINGS happen. Questions on plans arise. One subcontractor delays another subcontractor. The general contractor’s superintendent leaves for a better gig somewhere else. The Owner is noncommittal and frequently changes his mind. Rain, sleet, snow, and hurricanes happen. Or, all of the above happens on your “Project from Hell.”

In these cases, communication is key. You should strive to always communicate the proper information, to the proper person, at the proper time. Consider these scenarios:

1. You are the GC of record. Your plumbing subcontractor is performing poorly on a commercial construction project. However, your day-to-day contact, the plumbing company’s site superintendent, keeps you informed. He tells you of the problems with material shipments, labor issues, or plan conflicts. You can then modify the schedule, change the critical path, or take other steps to mitigate issues.
2. Conversely, your plumbing subcontractor hides its issues from you, the G.C. You do not know why delays are occurring, and you are making promises to the Owner about Project completion that go unfulfilled. The Owner starts to talk liquidated damages.

Clearly, you would rather have a good communication, like in Example 1 above. However, what if you are in situation #2 above? Seek out communication from your subcontractor. Investigate the reasons for the delay. Take steps to minimize delays that will make the Project fall behind schedule.

This may take some real, face-to-face meetings with your subcontractor. Bite the bullet. Do not send one measly email asking for an explanation. Sit down, talk, document the meeting, and follow up. Can you solve every problem this way? No. But, you will have a good start. And, if you are actively keeping everyone informed, documenting follow up items and verbal agreements, you stand a much better chance later, if you have to face a jury.

Which position would you rather have to communicate to a jury?

1. You don’t have any records. However, you swear that you met with the subcontractor, and that the subcontractor promised to accelerate at its own cost to make up project delays. OR
2. You not only met with the subcontractor, but you have a meeting follow up note written shortly afterwards where you confirmed the subcontractor was going to self-accelerate his work, at his cost.

When you communicate, preferably in person and with written follow-up, you have done several things:

1. You’ve helped to move the Project along and stay on schedule
2. You’ve lit a fire under your poor-performing subcontractor
3. You’ve documented the file in case you need it later, in a court of law.

Remember, one throw-away email, with no follow-up, doesn’t cut it. You should be pro-active on your jobs. Not only can communication prevent or minimize problems, it can also be a good marketing tool to show potential clients how you go the extra effort to make sure their projects are done on time, every time.

As always, Melissa and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.