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 firstname.lastname@example.org 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 . . .Read More
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 email@example.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.
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 . . .Read More
By Gary L. Cole AIA, Esq. / Attorney & Architect
On September 28, 2012, I posted a query on select LinkedIn groups regarding possible interest in a series of articles I’m developing under the title The Visual Thinker’s Guide to Understanding Construction Contracts. The response was surprisingly enthusiastic.
Therefore, I’ll post the first article of the series shortly on my website here at http://www.garylcolelaw.com, and will announce it on my LinkedIn groups and direct contracts, Twitter, etc. Thereafter, the articles will be posted on a regular basis and in reading lengths that make them conducive to online publishing – like short chapters of a larger publication.
But in response to some of the comments I received on LinkedIn, a little more about these articles:
These articles teach design and construction professionals visual thinking techniques for quickly organizing, absorbing and comprehending legal documents, using as a first example the AIA B101 – 2007 Standard Form of Agreement Between Owner and Architect. But learning these techniques isn’t simply a matter of reading a few pages of instruction – it’s about developing core cognitive skills by leveraging existing ones. And it will take some practice, though I always enjoy using them because they require a vigorous visual imagination.
For the motivated who learn these techniques and become proficient, I think you’ll be surprised at what you can do in a short time – I certainly was the first time I learned them.
These techniques involve the higher development of several core cogitative skills involving organization, visualization, focus and memory, to commit the substance of legal documents not merely to paper as graphics – which I don’t believe would be particularly useful – but to working memory and actual knowledge. Information stored only on disc or on paper is just information – but if it’s also stored and can be readily accessed from the mind, it becomes working knowledge. Developing proficiency with these techniques will make your mind your hard drive, which, of course, you carry with you and can access anytime – though I admit there’s always the danger in our businesses of losing it. That’s a law joke.
Individually, these techniques are simple – even fun – but may at first seem a little awkward, which is why I’ll break them down to their individual skill components and then build up slowly with examples and exercises, with time in between the articles for readers to develop comfort and proficiency before advancing to the next step. Anyone can learn these techniques – including lawyers, who tend not to be visual thinkers, but who do excel in organization and focus. But because design and construction professionals already visualize well, it may be particularly suited for them.
These techniques also work very well for test preparation – I used them for the LEED exam study recently. I developed them during six years of architecture school, three years of law school, used them to prepare for the Architects Registration Exam – and credit them heavily for allowing me to score in the 98th percentile of the Structures portion and pass the 12-hour Design portion of that exam the first time – two state Bar exams, and more mid-and final exams that I can count. I modified them for my legal practice and continue to use them regularly.
Architects and contractors are knowledge workers – their market value is strongly related to what they know and produce from their knowledge base, and what their competition doesn’t. Practical creativity springs, in part, from raw accumulated knowledge. And the more you know, the more you can know.
However – and I say this from personal experience – the thinking skills that work well in design and construction do not always lend themselves to absorbing and understanding the law. That requires a different way of thinking – hence, The Visual Thinker’s Guide to Understanding Construction Contracts.
And if you’re concerned that your focus and memory may not be what it once was, mastering these techniques may actually alleviate those concerns. If you enjoy developing your memory and cognitive skills for personal and professional reasons, then these techniques may be for you. But if you don’t, you probably won’t enjoy reading these articles.
Though there’s a very good chance your competition will.
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 firstname.lastname@example.org.
[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.]Read More
Originally Published 2010
By Gary L. Cole AIA, Esq.
[Author’s Note: The following paper was presented on October 21, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. Well, a lot longer. I’d originally intended to post it in parts, but instead, decided to post it all at once to be chewed in bite-sized chunks at a reader’s leisure.
And, as always: Nothing in the following post or paper should be construed as legal or architectural advice – the contents are entirely the unsolicited opinions of the author. Parties should always consult their legal or design professionals for specific advice and information.]
The following is a bullet-point summary of the paper’s main points:
▪ Local governments that have enacted historic preservation ordinances (HPOs), and, that are considering enacting green building ordinances (GBOs) which might affect local or National Register-designated historic properties, should proceed with caution because:
– unlike the underlying legislation for most local HPOs – the NHPA of 1966, which was deliberated by the U. S. Congress and is well-vetted after more than four decades since its enactment – the entire premise for GBOs, i.e., “anthropogenic global warming” is becoming increasingly controversial, rendering GBOs increasingly vulnerable to legal challenges;
– tying compliance with GBOs to third-party energy and resource-efficiency standards such as LEED, especially for politically motivated reasons and without proper consideration of local economic development, may subject such GBOs to legal challenges;
– GBOs that fail to require prior local approval of adopting changes to third-party standards such as LEED may also subject such GBOs to legal challenges; and
– GBOs that fail to balance carrots and sticks – incentives and requirements – may have a chilling effect on local development.
▪ Depending on how GBOs are drafted – with or without due consideration of HPOs – the two ordinances may impose conflicting requirements on owners and developers undertaking the rehabilitation of local historic properties as follows:
– compliance with a GBO may impact the character-defining features of an historic property, thereby running afoul of an HPO and preventing permitting from a local preservation commission as well as disqualifying a project for historic tax incentives; and/or
– compliance with a local HPO and the National Register may prevent a property from complying with a GBO, especially as relates to achieving any required green building ratings, thereby affecting permitting and any possible financial incentives.
▪ The paper concludes with possible mitigation strategies for dealing with conflicts between HPOs and GBOs, and suggestions for cities considering enacting GBOs.
Traditional Building Exhibition & Conference, Chicago, October 21, 2010 – “Legal Issues When Historic Preservation Goes Green”
Introduction: I’d like to thank everyone for coming here today. I’m going to start by giving a brief introduction of myself, and why I think a discussion about possible frictions between green building ordinances and historic preservation laws is both timely and relevant.
My name is Gary Cole, and I’m an Illinois licensed architect, and Illinois and Florida-licensed attorney. I received a Bachelor of Architecture . . .Read More
The New ConsensusDOCS 310 Green Building Addendum: Avoiding Green Legal Liability With Actions Over Words
Originally Published 2010
By Gary L. Cole AIA, Esq.
ConsensusDOCS, the construction industry’s leading standardized construction contracts and general analogue to the American Institute of Architect’s Contract Documents, recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.” The two most interesting things about the new document are: (1) that it exists at all; and, (2) that ConsensusDOCS has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire green building movement: that in any useful design, construction or legal sense, the term “green” has no reliably consistent meaning at all. That the new ConsensusDocs 310 Green Building Addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.
“Green Building” – “Green Living” – “We’ve gone Green!” In any real design, construction or legal sense, exactly what does “green” mean? And what does “green building” mean? Ask a hundred people . . .Read More