Quick: What’s the number-one symptom that a client may be thinking about filing a claim against you? You should know for certain. Additionally, everyone else in your firm should be capable of detecting that symptom and then doing something about it. But I bet that, even if you know for certain, you haven’t taught it to everyone else in your firm with "a need to know." And even if you have, I’d bet even more that some of them would be afraid to report the symptom, preferring to stick their head in the sand rather than risk igniting the wrath of Khan.
Point: We all make mistakes. When a mistake goes undetected, however, its consequence can grow from a molehill into a mountain. Clearly, your firm can benefit from sponsoring a comprehensive professional development program that not only teaches people how to prevent mistakes, but also how to spot symptoms of problems ahead. The latter element is based on the notion that it doesn’t have to be an individual’s mistake to be his or her problem. Failing to detect a symptom is a mistake; failing to teach people about symptoms and how to spot them is a bigger mistake. An even bigger mistake is failing to establish an open-communications environment where people do not fear that reporting a symptom could get them into hot water, even if the symptom resulted from their error.
"We’ve never had such a problem," you might say, adding, "so we likely won’t have one in the future." But that doesn’t justify your failure to provide adequate professional development to "the troops," given the risky business you’re in. Just consider the time and cash cost of a claim.
First, you have to notify your professional liability insurer, and that often means your professional liability insurance premium will be higher next year, assuming the same insurer is even willing to cover you.
Second, you have to meet with an attorney your insurer selects and tell that individual who you are, what you do, what the claim may be about, and so forth. The lawyer will tell you that you need to develop background information about the claim, meaning third, you will have to form and lead a three- or four-person research team to track down every available bit of project information.
Fourth, you will prepare a narrative of events to supply to the attorney and the attorney’s associate, a recent law school grad who will perform various mind-numbing tasks at an hourly rate far less than the attorney’s (but still a lot more than yours) to gain profitable experience.
Fifth, you will enter the world of discovery, where subpoenas for documents are met with cries of, "They’re on a fishing expedition!" followed by motions, delays, and any number of other litigation rituals that make water torture seem like a reasonable alternative.
Now, let’s assume your lawyer gets the claim dismissed prior to depositions, so you win what turns out to be a meritless suit. Congratulations. You will have gone through your deductible and will have chewed up probably $50,000 or more in otherwise-productive time. And that doesn’t even begin to consider the "opportunity cost"—the value of opportunities the firm missed because its senior people were discussing a claim rather than developing winning proposals.
How many of these can your firm afford? Not many, I bet, considering that, if you can confine the cost of a claim to, say, $100,000, all things considered, you’re doing well. (Remember: $100,000 is the profit many firms earn on fees of $1 million to $2 million.)
Consequently, how can you not sponsor a vigorous professional development program in your firm? Not because it’s something most young professionals want. Not because it’s something most others in the firm can benefit from. But just because it would be so good for a staff member to come to you and say, "I’ve noticed what might be a symptom of a problem on the Jones project and I want your opinion." Think you have that now? You probably have another think coming.
The reason why yours is such a risky business is not because it’s filled with risk. It’s because most civil engineers fail to learn from others’ mistakes and fail to have in place professional development programs designed to keep bad history from repeating itself. Your business is like crossing the street at a busy intersection. It can be risky, but you can take appropriate precautions to manage that risk. That’s not the case if you cross with your eyes closed.
Want some eye-opening information? Visit www.asfe.org to find hundreds of books, manuals, guides, monographs, model contacts and other model documents, report and proposal insert sheets, audio education programs, DVDs, interactive electronic risk management games, and more. But they only work if you use them.
So, what’s the number-one symptom that a client may be thinking about filing a claim against you? I’ve already told you everything you need to know to answer that question on your own.
John P. Bachner is the executive vice president of ASFE, a not-for-profit association that provides programs, services, and materials to help geoprofessional, environmental, and civil engineering firms prosper through professionalism. Visit ASFE’s website at www.asfe.org.