Wednesday, 02 December 2015 06:30

Tales of an Expert Witness: Sex, Lies, and Video Tape (Part II)

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Trust relationships, certifications, and standards sound like such a safe harbor. These sound like such great words in a proposal or statement of work. How could you possibly go wrong building a trusted relationship with a customer by committing to follow a standard? In fact, this can burn you… in court.

No one ever starts a project with the goal of ending up in court. In fact, litigation may never cross your mind; after all, you have built a trusted partner relationship. Taking a few cautionary steps, however, will make your life easier if you end up in that ill-fated litigious position. Your best chances for success come long before you enter the courtroom—even before the project starts.

As discussed in the part one of this article, honesty and clarity take you a long way in staying out of court, but there are some surprising statements and situations that you may never think would be held against you.

Is a Trusted Partner Really a Good Thing?

We all want to attain the status of "trusted partnership" with our clients—at least until the relationship gets in trouble. At that point, some legal circles assign the trusted partner significantly more liability. That designation may mean you have responsibility to divulge conditions and risk that you may not normally do with a client. For instance, assume you are the supplier working on a fixed-price contract. Since fixed-price contracts transfer delivery risk to you, you may not see the importance of telling your client how late you are since it is your responsibility to do what it takes to meet the deadline. You are confident that you can make the time up. In a trusted partnership, however, the court may be considered this action violating your "special relationship" and make you liable for additional damages. Your risk could significantly increase.

Even If You Did Not Want To Be A Trusted Partner...

What could be better than having your client pay for you to write the proposal for the project you are about to do for them? That payment nicely offsets your overhead and seems like a great deal. The resulting issue is that some states regard being paid for work that your potential competition does not get compensation for, implies there is a "special relationship" between you and your client and you immediately inherit the trusted partner responsibility. At risk is starting to look like an extension of your client’s capabilities. That sweet deal may not be so sweet after all.

Never Talk In Broad Terms—"We Follow PMBOK®"

"We put only PMP® certified project managers on our project and they follow the Project Management Book of Knowledge® (PMBOK)." That quote may be a great line from a sales person or in marketing literature, but it should never creep into a contractual document. Standards (such as the PMBOK) are built to handle nearly every case that exists inside a domain. That makes them very general. Few projects intend to or should deliver every document prescribed in some standard they reference. It would kill most projects. In the PMBOK’s case, it even says so in the standard. However, impressing people with lofty words and enumerated lists of documents from a standard also makes you liable to deliver them. As for the requiring a specific certification like the Project Management Professional (PMP), think twice. There are thousands of very qualified people who can run complex large projects that who lack their PMP certification. Why would you exclude capable people?

Never Oversell Your Capabilities

By definition, to grow we have to push the envelope and add to our repertoire of skills. There is always the first time. It is deceptive, however, for a company to hide that fact. If you are stepping outside your realm, say so. During litigation, it matters whether you told the client that you built rocket ships that went to Mars when in reality you only built the second stage booster that got the rocket into earth orbit. Overselling your capabilities in an SOW or contract is tantamount to lying. If you fail to deliver on these items and warned your client it was new territory for you, judges, juries, and arbitrators will be more lenient. Omit that fact and be prepared for the wrath of justice to be bestowed upon you.

Honsetly, there are many times when even lawyers overlook the liabilities of these staements. Before signing any SOW with a subcontractor always have it reviewed by an expert in executing the types of projects you want to deliver.

Where Is The Sex And Video Tape?

Well you got me. You have read two articles just waiting for both and they are missing. That headline was too good to pass up. There was no video tape, although there was a lot of documentation. Remember though, that those recorded GoToMeetings and Google Docs edit history are discoverable and would be great fodder for the courts. They show a lot more than the meetings minutes ever will. As for the sex? I have seen a lot of new relationships spring up from projects, but those have been classified as team building.

In the end, and unlike the title of the article, the broad and glamorous brush of marketing has no place in contractual documents. Be close to your client, but not too close. This is business and requires deliverables, dates, documents, and signatures. Being objective, open, and honest will build the barriers between you and court.

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