Home Management Tales of an Expert Witness: Balancing Cavalier And Paranoia

Tales of an Expert Witness: Balancing Cavalier And Paranoia

by Todd Williams
Todd C. Williams, Founder & President, eCameron, Inc.

Your day is packed with meetings. You walk into your office with a plan to complete dozens of tasks. Then you see the note. It simply says “Call your attorney…” You think she is about to give you the go ahead on that new contract when she says, “You just got a subpoena on the NewCo Project. They are steaming mad that we have not delivered their product to specification.” You get that nauseating feeling that this is going to be a long day… no… a long year. The subpoena gives you four weeks to provide every contract, statement of work, change order, log, email, document, physical mail, specification, test document, picture, drawing, scratch note, etc. that ever existed on their project. You really thought you had solved this issue. You reflect back on the project and wonder how many corners were cut for the sake of getting sign off.  They never did accept the product.

You may think it will never happen to you, but it does happen—every day. As a leader you have to build an organization that can navigate the grey area between the paranoia of worrying about every document you write and email you send, and the cavalier approach that you will never be in court. This is your test as a leader—discovering if your company’s culture is going to save you.

Cultural Concerns

Honesty At All Costs

Your culture must value honesty over everything else. The smallest of lies can get you in severe trouble. One employee telling the client “we completed it today,” when in reality they knew it would take another day, can get you in trouble.  Unforeseen issues can make that slide a day, and another, and… Litigation’s discovery process will turn up any emails mentioning this detail and they will portray your company as deceitful.

Getting Into Bed With Your Client

The ultimate client relationship is being considered a trusted partner.  At least until the relationship gets in trouble. Partners share and, in some legal circles, a trusted partner’s advice has more weight, troubles are shared, and risk is distributed. For example, assume a contract is fixed-price. The provider may not think it is important to divulge all its issues to the client. After all, in a fixed-price contract the supplier owns the risk on delivery. As a trusted partner, however, not divulging the increased risk may be considered a violation of trust and the supplier even more liable for items such as lost opportunity damages.

Getting Paid For Everything

Even if being a trusted partner is not your goal, plaintiff lawyers can make the case you are by how you were treated. Certain non-standard contract conditions, such as being paid to create a proposal or a bid knowingly being non-competitive, are conditions that can be construed to show your client was placing you in the “trusted partner” role. Your sales team feels it had done a great job of getting closer to the customer and increasing margins, but quietly added more risk.

Doing Everything To Standards

Blanket statements about following standards or overstating your capabilities, especially in a contract or statement of work, can commit you to significant additional scope.  Ensure that your staff knows not to over commit (even in the heat of winning the contract) and that legal counsel, with background in your domain, reviews all binding documents. In one case, a statement of work said the supplier would “use only PMP® certified project managers and follow the Project Management Body of Knowledge (PMBOK®)”. It went further to define what the PMBOK called out as documents. There are many fully qualified uncertified project managers that can run projects, but using one on this contract violated the contract. Enumerating documents from an accepted standard commits you to a drastically increased scope. In the same light, do not tell clients that you build rocket ships when you only build airplanes. Undisclosed exaggerations are tantamount to lying.

Process Pitfalls

Change Orders or New Project

Although the details are deeper than this article, there is a fuzzy line distinction between ‘change orders’ and ‘statements of work. ’Change orders modify the parameters of an existing contract while a properly worded statement of work indicates that you are commencing on a new endeavor. The latter triggers the start of the statute of limitations while the change order does not.  With statute of limitations comes an implication on when warranty periods start and when implied acceptance occurred.

Boilerplates Efficiency

Boilerplates and templates save time and money since you can easily generate similar contracts and statements of work without involving legal counsel. However, they often have far more information, often contradictory, than what you need for your project.  They are intended to be trimmed after you have thought through all of the possibilities.

Have In Writing

Second only to being honest and open is to “get it in writing.” And, the Holy Grail of writing is the dated signature. Signatures mean agreement. It is nearly impossible for anyone to argue that they signed a document they disagreed with. Signed contracts, statements of work, specifications, and, most importantly, acceptance documents must be obtained and retained.

In The End, Reasonable Assurance

No one wants to go to court. If you end up there, your success in court is driven by the culture you define for your company. Will it be sales above all, or picking the right jobs within appropriate domain? This will help guide your balance between careless abandon and paralyzing paranoia that overanalyzes every document and email for its legal implications. Being truthful, getting written agreement, and remaining realistic about your capabilities will keep you out of a lot of trouble… and most courtrooms.

About the Author

Todd Williams has served as a successful expert witness in project litigation. He can work with your group to help it understand the reasonable efforts your company needs to follow. He provides presentations and workshops to help guide project teams over the big hurdles that expert witnesses hope you trip over in litigation. For more information visit http://ecaminc.com/expert.

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