Chapter 1: The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials

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

[Author’s Note: This is the first part of a series of articles that will demonstrate for 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.  

The Introduction to this series can be read by clicking HERE.

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.]

                                               

The goal of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is to allow visual thinkers – in this case design and construction professionals – to be smarter in their practices.

Of course, “smarter” is a loaded term and its use always carries the risk of sounding hubristically smug.  But as used here, it has nothing to do with hubris, smugness or even “IQ,” a controversial term that I’ve always understood to be a measure of potential, not of performance.

For these articles, I define “smarter” as follows:  “the ability to process and retain more useful information in less time and to produce something of value for a professional market.”  Certainly, the term is broad and there are many ways to define and apply it; but these articles are about working smarter and more productively, not harder with less to show.

The key words are “process and retain more useful information in less time.”  Call it a solid Midwestern upbringing, but I’m interested in practical results.  It’s not that I have anything against implausible thought experiments with no remote possibility of leading to anything useful – they can be excellent diversions.  But to paraphrase Mick Jagger:  “Too much intellectual posturing in the bath is not a good thing.”  It’s also not a very useful thing in professional markets.  More on point, and to quote someone who was not the leader of the greatest R & R band ever:  “The business of business is business.”

Therefore, on to business.

                                               

Boiled down, the logic underlying The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials can be expressed almost algebraically:

“To be able to communicate knowledge of something, that thing must be deeply understood.  To deeply understand something, it must be fully remembered.  For visual thinkers, the best way to recall something is visually.”

Or, further reduced:

Communication (knowledge) = Understanding = Recall = Visual Memory (visual thinkers).

Architects, engineers and contractors are knowledge workers.  Their market value . . . . . . is strongly related to their useful knowledge base, what they understand and know – and what their competition doesn’t.  Knowledge builds on itself; the more you know, the more you can know.  Practical creativity and business success in the design, construction – and legal – professions are also based in no small part on accumulated knowledge.

If The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials’ goal is to make design and construction professionals smarter in their practices by demonstrating techniques for accumulating more useful knowledge in less time, it will do so in three steps:

First:  Organizing the construction contract.

This is a pre-visualization exercise.  To be committed to visual memory, a construction contract must first be properly organized, starting from the general and working to the specific.

Second:  Committing the construction contract to visual memory.

Once properly organized, the visual framework of a construction contract – the parties, setting, project, and its articles, sections and subsections – is committed to visual memory.  This is the structure that supports the whole exercise.

When the visual framework is in place, the next step is to fill in the space between the supporting members with the contract’s essential details using some of the same visual memory techniques as were used to create the organizational structure.  This infill includes the entire contract – not just the front-end business terms that deal with scope of work and getting paid; but the back-end of the contract including the general conditions, provisions that some dismissively, and foolishly, refer to as “boilerplate.”  That term is henceforth banned for reasons that will become obvious later.

For the more literal readers, my structural metaphors above are just that – metaphors.  We won’t be picturing building structures – columns, beams, floors – in our minds; though, now that I think about it – that could be useful with another visual memory technique that I may demonstrate later.  But because these articles are about visual thinking, it helps to communicate with visual thinkers using visual metaphors.

Third:  Visually communicating the construction contract’s essentials.

With the entire construction contract now absorbed into fluid working memory, it can easily be discussed and even graphically communicated using sketches, PowerPoint – or even some of the next-generation of visual presentation programs like Prezi.  Visually understood construction contracts lend themselves to graphic communication particularly well, especially when understood as story, which will be discussed later in this series.

                                               

The demonstrator construction contract for these articles will be the AIA B101 Standard Form of Agreement Between Owner and Architect (2007).  I chose this contract because it’s about the right length and complexity for my purposes – but any construction contract with a similar structure will serve.

Developing these visual memorization skills will take place over several installments of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials with four different techniques being taught – all which take advantage of a visual thinker’s existing visualization skills.

Those who carefully follow the exercises set out in these articles will acquire a deep understanding and the ability to communicate the content and meaning of every article, section and subsection of a construction contract, including all legal terms and concepts and citations to cross-referenced content.  If a contract is amended over time, the same visual memory techniques will allow the mental construct to be easily modified.  And because the technique requires visual thinkers to use their visual thinking abilities and visual memories, the information lasts as long as wanted, with minimal upkeep.

For those who negotiate construction contracts I pose these questions:  how many times have you negotiated a contract using a dog-eared, heavily tabbed paper copy as a reference because the details weren’t completely committed to memory?  Or, how many times have you appeared at a contract negotiation with just a clean, or lightly noted reference copy in hand because the working knowledge was stored in your mind?  Now, which scenario would you conclude gives you a practical, competitive advantage in your market?

                                               

The techniques demonstrated in “The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials” will require a little practice to master.  At the end of each article will be a homework assignment to allow readers to master the techniques of that installment and to prepare for the next.

The following is this week’s assignment for next week’s article:

1.   Obtain a construction contract.  Following along with the AIA B101 Standard Form of Agreement Between Owner and Architect (2007) might make the lessons easier to understand since I’ll be demonstrating the visual memory techniques directly from it.  It’s available for purchase on the American Institute of Architect’s website.

2.   Reality check you current memory.  Try the following memory exercise to create a baseline for your present memory skills and to prepare for the next article.  For readers who have developed other techniques not taught in these articles, please put them aside for now – they might interfere with the visual techniques taught here.

Try this:  look around wherever you are and make a list of five objects around you.  Now, memorize all five things.  When you can recall the list frontwards and backwards without error, add another five for a total of ten, and memorize them in the same way.  When you can recall that list of ten things frontwards and backwards, add five more to your list.  Repeat this process until you have thirty objects on your list that you can recall frontwards and backwards without error.  Keep track of how long this all took.

If you’re like most people, you tagged out somewhere between 10-15 items.  Very few people can memorize a list of twenty or thirty objects and be able to recall them frontwards and backwards without training or a system for doing so.

By learning the visual memory techniques taught in these articles, everyone should be able to easily memorize thirty, fifty or even a hundred items – or more.  There really is no limit to the number of things you can remember using these techniques – a longer list just takes a little more time.  The technique taught in the next few articles is the simplest of the techniques, but it lays the foundation for the others.  And that list of thirty items?  With just a little practice, it should take about 5-10 minutes to commit all thirty items to lasting visual memory that can be recalled indefinitely.

                                               

So, what does memorizing a list of objects have to do with committing an entire construction contract to visual memory?  All will be revealed as we progress through these articles, but a long time ago I learned something about learning:  when I was a short order cook in high school I had to learn how to crack and drop an egg with one hand before I could make an omelet; when I was an avionics communications tech in the Air Force I had to learn how to turn on a radio before I could learn how to fix an aircraft; and when I was a visiting associate professor at the University of Illinois, I learned that teaching graduate architecture students how to build a masonry wall started with teaching them how to mix mortar.

In all cases, master the fundamentals and build up.  That’s what memorizing a list of objects has to do with committing an entire construction contract to visual memory.  Fundamentals first, practice and master, move to the next step.

Fortunately, we’re just committing construction contracts to visual memory, not the Iliad, so we don’t need to develop Homeric mnemonic skills – though I suspect Mr. Wine-Dark Sea used a number of visualization techniques to commit the epic to memory that are not all that different from the techniques readers will learn in these articles.  However, any reader who manages to memorize the entire Iliad using the techniques taught in these articles will receive – free of charge – a bound, autographed copy of The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials.

Finally, online publications have fairly short practical lengths, which, depending on the subject, is somewhere between 500 – 1500 words.  Because The Visual Thinker’s Guide to Understanding and Communicating Construction Contract Essentials is long, it will be serialized and published in regular – weekly, my law practice permitting – installments of around 1,000 words for quick and easy digestion.

 

Next:  Chapter 2:  Organizing a Construction Contract For Visualization

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.]