Originally Published 2009
By Gary L. Cole AIA, Esq.
The January 16, 2009 edition of AIArchitect – the American Institute of Architects’ weekly e-newsletter – C. Douglas Barnes penned a response to the January 9, 2009 edition’s article by Michael Stroghoff, AIA’s “Negotiating With a Client’s Representative Requires Different Tactics.” Mr. Barnes’s response “When the Client Insists on Its Own Contract, Then What,” and comments from other architects expressed some frustration with purportedly one-sided owner-supplied contracts. As first a licensed architect and now, for the past decade, a construction attorney, I understand the frustration . . . expressed in these responses. In my experience, many “construction attorneys” have too little understanding of the complexities of the design and construction process to craft equitable contracts.
But in most cases, the intent of transactional attorneys is not to force one-sided contracts on their opponents and grind them into the dust – though it may seem that way sometimes. They’re seeking to protect and serve their clients – as are architects. But if I can offer my fellow architects a few general insights into dealing with my fellow attorneys, it might make your next interaction with the legal community more palatable
And as a general disclaimer, the following is just for general educational purposes – none of it is intended as legal advice to any reader or writer. You should always seek legal advice about your specific situation only from your own attorney. First – to an attorney, almost everything is a negotiation until the second before the deal is inked – unless they’ve been instructed by their client not to negotiate. But if not, and an architect wants to negotiate certain terms of a contract, he shouldn’t ask to discuss those terms on the grounds that the proposed contract isn’t “fair”. Instead, give the attorney reasons why doing so is in the best interest of his client and the success of the project – which translates into being good for the attorney as well. That may help at least open the door. Show that because you’re both representing the owner, you’re really both on the same team and want the same outcome.
Second – attorneys, even transactional ones, play to win. Be persuasive, but pick your battles. You won’t accomplish much by showing up with a list of thirty-three items of contention. Most attorneys can tap into a special organ they’ve evolved that gives them the energy to tirelessly negotiate the terms of any contract, so you probably won’t win with that approach. Pick a few issues that really matter and focus on those points. You just might impress the probably overworked attorney with your consideration and they may be much more amendable to negotiating future contracts with you.
Third – attorneys appreciate clarity of thought and speech. The written word is both their home and their battleground. If you’re having a meeting to discuss a contract, take the time to organize your thoughts and your argument – maybe rehearse beforehand. If you’re writing a letter or email – keep it concise and on point. Consider tone – very important to attorneys. Believe it or not, most correspondence between opposing attorneys is exceptionally polite and they expect other professions to communicate with them the same way.
Most attorneys really just want the same thing as architects – to serve their clients well. If some attorneys are a bit overzealous due to inexperience, remember that as an architect you have a much greater understanding of the design and construction process. Consider that as an opportunity to elevate the attorney’s understanding of the overall process – which allows them to serve their client better – and you may find yourself with a valuable ally.
© Copyright Gary L. Cole 2009