Introduction: The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials

By Gary L. Cole AIA, Esq. / Attorney & Architect

[Update October 12, 2012:  Some readers have requested that I notify them by email upon my next posting of a “Visual Thinker’s Guide” installment.  I’m more than happy to do so for anyone who emails me directly at garycole@garylcolelaw.com and simply puts “Receive Visual Thinker Updates” in the email Subject line. Thanks.]

 

[Author’s Note:  The following is an introduction to a series of articles that will instruct design, engineering and construction professionals how to better understand and communicate the substance of construction contracts and other text-heavy documents, by using their existing abilities as visual thinkers.]

 

                                   

Preface & Summary

For design and construction professionals who are visual thinkers – those who best comprehend text and words by transforming them into still or animated pictures in their minds – closely reading, deeply understanding and clearly communicating the essential details of construction contracts can be a joyless and intimidating ordeal.  The ape-men of 2001: A Space Odyssey huddled and gibbered at the mysterious black monolith with less trepidation than some architects I’ve known when faced with reading, or worse, being solely responsible for negotiating an American Institute of Architects form agreement.

But it’s not their fault – construction contracts just aren’t written to be understood visually.

Construction contracts are written by lawyers – who mostly think, speak and write in the rarefied, priestly vernacular of the law, not in the fleshy, three-dimensional visual world of design and construction.  So if architects, engineers and contractors aren’t trained to communicate in the language of the law, and if the law doesn’t communicate visually, can they ever learn to embrace construction contracts as a necessary – but not necessarily evil part of their professions?

Absolutely.  They just have to keep reading.

This is the introduction to a series of articles titled The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials that demonstrates for design and construction professionals, visualization techniques for organizing, understanding and communicating the essential details of seemingly impenetrable two-dimensional, text-driven construction contracts by transforming them into unique three-dimensional mental images.

And once construction contracts are understood as interrelated mental images, they can be communicated visually to clients, peers or opposing parties as sketched or even PowerPointed graphics.

Though The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is written with design and construction industry professionals in mind, anyone can learn its lessons – even contract-writing, text-loving lawyers.  All they need is a little willingness to think visually.

                                   

Introduction

Speaking as one, there are few things that transactional lawyers love more than settling down to read a plump, juicy contract:  page after page after page of dense, finely-fonted text crammed with archaic phrasing and obscure terminology; Byzantine cross-referencing, sectioning, sub-sectioning, sub-sub-sectioning; whole pages of single paragraph run-on sentences; and crafted with a kind of visual symmetry, proportion and organization that makes Pollack look like Palladio.

Also speaking as one, there are few things that architects and other construction professionals loathe more than the things lawyers love – like reading lengthy construction contracts.  Vampires will sip holy water while sunning themselves in the Vatican’s piazza before many architects I’ve known will force themselves to read the AIA B101 Standard Form of Agreement Between Owner and Architect – word-for-word, from start-to-finish.

Of course, I exaggerate.  A little.  I also generalize.  A little.  And I vigorously agree that exceptions to most generalizations exist.  So stipulated.  I stand by them anyway.  A lot.

But why should architects, engineers and contractors fear and loathe the well-vetted industry standard contracts of the American Institute of Architects, or the Associated General Contractors of America, or the Engineers Joint Contract Documents Committee, the very documents they depend on as business plans when projects go well – and as battle plans when they don’t?

Having survived the professional metamorphosis from architect to attorney & architect – I think I understand the issue.

Most design and construction professionals think, understand and communicate better in three-dimensional visuals . . . than they do purely in words and text.  Lawyers, generally, do the opposite.  It’s simply the nature of the two professions and the communication media of their services.  But construction contracts are more often written by lawyers, not by design and construction professionals, and are therefore the products of word-loving legal minds, not the image-loving brains of design and construction professionals.

Separating these two types of thinking and communicating is a very wide and very deep cognitive chasm that denies a visual thinker full access to a deeper and richer understanding of construction contracts.  And it is the intent of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials to change that.

                                   

Differences in Thinking and Visualization

Because this is an introduction to a new way of understanding and communicating the substance of construction contracts that will unfold over several articles, and because it will probably be read by both my fellow architects and my fellow attorneys, it’s worth taking a couple minutes to dissect the differences in the ways the two professions think and communicate.

The differences are profound.

On the whole, architects, engineers and contractors think and communicate in both two-dimensional and three-dimensional visual worlds.  During a construction project’s planning stages, ideas morph back and forth from three-dimensional imagery in their designers’ minds to two-dimensional sketches:  plans, elevations and section drawings, or perhaps two-dimensional axonometric and perspective drawings with a little visual trickery to make them appear three-dimensional.

But  the interesting part of this process – and the part most relevant to The Visual Thinker’s Guide to Understanding and Communicating Construction Contracts Essentials – is that even when architects are designing and detailing buildings with two-dimensional drawings, they’re actually thinking – visualizing – in all three dimensions at once, like a 3D movie running in their heads.  This is the gift of the designer – the ability to mentally visualize in three-dimensions; to build their ideas layer by layer, to subtract add and replace; to rotate on any x, y, and z-axis as freely in their minds as they might rotate CAD drawings on their monitors.  Eventually, through a sort of Darwinian process of elimination, the designer’s ideas coalesce and are finally represented by two-dimensional drawings bursting with graphic conventions and symbols that can be read and understood by like-trained professionals.

Contractors, those charged with transforming two-dimensional drawings into three-dimensional realities, do so by transforming them mentally into three-dimensional images while adding in considerations of cost, logistics, trade coordination, material availability and tolerances, weather, errors and endless other factors required for a design to achieve reality.  Or, as I like to call them – buildings.  This is not to suggest that the interface between architects and contractors is seamless despite the similarities in their thinking processes – the banter between the design, engineering and construction professionals and their respective priorities predates Giza.

While design and construction details are expressed two-dimensionally with industry-accepted graphic symbols, words and text operate in a supporting role when graphic conventions alone are insufficient.  A section drawing of a masonry wall, for example, will provide symbolic and graphic information about the wall’s constituent materials, but visual symbols alone cannot convey all the information needed to construct it.  For that, alphanumeric text supplements the drawings with dimensions, material descriptions, relevant context information and miscellaneous notes and specifications. But the text is still written in the vernacular of the design and construction industries – and not of the law – and so is comfortable and familiar to design and construction professionals.

It is written – somewhere – that when humanity’s ancestors first crawled onto land, most of them veered one direction while the future lawyers of the species went the other, and, for reasons unknown to paleobiology, evolved mysterious nodules in their brains that today allow them to focus for hours, days even, with the precision of an excimer laser on immense piles of text-laden documents mostly devoid of visual images  – contracts, leases, real estate documents, loan agreements, etc., and not only absorb the information – but enjoy the experience.

Attorneys dwell in a very different cognitive world than design and construction professionals; one more verbal and largely devoid of the rich and complex visual language of three-dimensional references and graphic symbols found in design and construction drawings.  Instead, lawyers generally communicate their ideas through a highly organized linear and logical thinking process that is reflected in their primary form of communication – the spoken and written word.

Like visual symbols used in the design and construction industries to communicate meaning, the words attorneys use are carefully chosen and may have their own accepted industry-standard or commonly understood meanings.  Legal significance may come from the words individually, or, from their assemblages to form legal terms that have gained legal or common acceptance in specific contexts.

And perhaps unknown to many design and construction professionals, attorneys will ponder, draft, revise, edit, re-draft and ponder some more, the precise assembling of words into sentences into paragraphs into documents with every bit the zeal for exactness that any architect ever put into, say – parapet flashing details.  And the reason is, metaphorically anyway, the same for both professions:  a sloppy product makes for a leaky one.

For example, the legal term “standard of care” in a construction contract, is not simply the sum of the separate words “standard + of + care” in a vacuum, but when read together form a legal term whose meaning depends on the nature of the parties and the specific context of the contract.  When supplemented by other qualifiers, the term has precise meaning regarding the type of professional diligence design and construction professionals must exercise when performing their work, and the liabilities that attach if they don’t.

And yet, without an attorney’s understanding of the express, implied and multiple meanings of the words comprising a Standard of Care provision in a specific context, design and construction professionals may not understand the term’s full meaning from a simple plain reading.

In the same way, attorneys looking at the masonry sectional wall drawing above may just see vertical and horizontal lines, material delineations, words with arrows, maybe a few numbers.  But the full meaning of the text and drawing’s graphic conventions and symbolism may be nuanced and depend much on their context; something that may be lost on attorneys – though completely comprehensible to architects and contractors at a glance.

To sum it up: design and construction professionals think in three-dimensional images, while often communicating with two-dimensional drawings and graphic symbols supported by text to represent their ideas and which gives rise to real-world, three-dimensional construction – buildings.  Attorneys think and communicate largely in a non-visual world of words and text.  Construction contracts are the product of textual legal thought, not of visual design and construction thinking.  Most architects and contractors don’t speak fluent lawyer, and most lawyers don’t speak fluent architect and contractor.  The commonality of both languages, however, is that their expression must be precise, or the final product suffers.

Yet, even accepting that these linguistic differences are fully and reasonably explainable, does that mean that this status quo is the best the design, construction and legal professions – different as they are from each other – can achieve?   Doesn’t understanding and working with Contract Documents – the beating heart of any construction project that includes text-laden written agreements, instructions and specifications, as well as drawings composed of graphic conventions and symbols – require a certain fluency in both languages?

The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials proposes that the answer is “yes,” and further suggests it can be done without trying to change the way design, construction and legal professionals think by exploring a proper translation matrix for their respective languages.  Or, at the very least, demonstrate a way that design and construction professionals can better understand construction contracts by leveraging their existing powers of visualization.

                                   

What Comes Next:  Understanding and Communicating Construction Contracts Essentials

So how will The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials accomplish all this?

The first part of the answer is in the words of the title, specifically:  “Understanding” and “Communicating.”

It is necessary to fully understand something to communicate it clearly.  Generally, the greater the understanding of something, the more fluid the grasp of the details and the easier it is to clearly communicate it.  Anyone who speaks publicly knows that the better they understand their subject, the fewer notes they need to talk about it.  Every exam is about as hard as the extent of a taker’s preparation.

So the first part of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is about developing certain mental visualization and memory techniques for creating a deep understanding, original awareness and flawless recall of both the organization and essential content of construction contracts.

Those techniques are developed by mastering two key cognitive skills everyone has in varying degrees: concentration and memory.  You cannot communicate knowledge if you don’t understand it; and you cannot understand something if you cannot remember it.

The problem for many visual thinkers like design and construction professionals, is that while they have well-developed abilities for concentrating on and recalling visual information, even visual information accompanied by supporting text, most have never really been forced professionally to develop the high levels of concentration and memory necessary for absorbing information primarily represented by text and words without accompanying visuals – like construction contracts.

Concentration and focus are needed to visualize and absorb text-only information, and then a technique is needed to transform that information into unique mental images that will be remembered forever.  A key element to the technique is that the mental images that cement the recall and understanding must be unique to each person.  Borrowing another person’s visual images are no good – they have to be entirely the invention of the person absorbing the information or the focus and original awareness won’t be triggered and the images and the information they represent won’t be understood and will not stick.

Odd as this sounds the first time, these techniques are based on a very simple principle of concentration and memory:

“You never forget what you bothered to remember in the first place.”

And these techniques are not mere “tricks” – unless they’re “tricks” in the same way Usain Bolt uses mere “tricks” to run 100 meters in less than 9.6 seconds.  These are techniques for greatly improving core cognitive skills.  But they have utility for anyone far beyond simply understanding and communicating the essentials of construction contracts and other legal documents.  I personally used them to prosper during six years of architecture school and to survive the Architects Registration Exam – the old version designed and administered by Tomás de Torquemada – in which they helped me score in the 98th percentile of the Structures portion and pass the 12-hour Design portion the first time.  I also used them during law school and the Illinois and Florida Bar exams; and to prepare for more mid- and final exams over the years than I can count.  More recently I used these techniques to study for the LEED exam, which cut its study time drastically.

Discovering these visualization techniques at an early age was simply one of the best things that ever happened to me, and I intend to share them through these articles.

The second part of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is about how to visually communicate a deep understanding of construction contracts, drawing on the techniques learned in the first part.

Many people, even non-visual thinkers, respond well to complex information transformed to its essentials through visual representations and graphics.  And it just so happens that construction contracts are well suited for doing just that.

The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials will teach those techniques too, but, without giving much away at the beginning – readers will have to learn how to convert pure textual information into visuals for a deep understanding of the content before you can learn how to communicate it visually.

                                   

Denouement

All this might seem a little overwhelming – I promise future articles will be much shorter than this introduction.

And if, as a reader, you’re concerned that your focus and memory may not be what they once were, mastering the techniques taught in these articles may actually alleviate some of those concerns.  I personally reject one of the popular beliefs about human memory, which is that it’s like the sands of a beach relentlessly pounded by waves over the years, and which once washed away can never be reclaimed.  Whether that notion has any physiological – or metaphorical – basis in fact is outside the scope of these articles.  But I know this from personal experience:  most people can greatly improve their focus and memory by learning a few simple – and enjoyable – techniques that rely on visualization.

And like anything initially intimidating, visually understanding and communicating the essentials of construction contracts starts with properly organizing the effort into manageable, smaller parts before launching a full ground assault.  It’s divide and conquer, not be crushed and surrender.   Nobody – not even lawyers – reads construction contracts the way they read novels; from start to finish, front to back.  Construction contracts have to be sliced apart – deconstructed, if you will – and reorganized into smaller, bite-sized parts.

Or, as Doug, one of 2001: A Space Odyssey’s ape-men later said:  “I wouldn’t have been so overwhelmed by that big black monolith if I’d just remembered what I learned in grad school:

You eat a woolly mammoth one bite at a time.”

 

Next – Chapter 1:  The Essential Organizational and Memory Techniques CLICK HERE

Copyright Gary L. Cole AIA, Esq. 2012   

Gary L. Cole AIA, Esq. http://www.garylcolelaw.com/ is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect.  He practices design & construction law, real estate law, historic preservation law, accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, is a Certified Mediator, and is a consultant and an expert witness in civil construction, historic preservation and federal accessibility litigation.  He can be contacted at garycole@garylcolelaw.com.

[DISCLAIMER:  This document is for informational – and sometimes entertainment – purposes only.  Neither this document nor the information contained within shall be considered legal advice, nor shall its distribution or reading form an attorney-client relationship between any reader and the author Gary L. Cole AIA, Esq.]