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Up in the Air with CZ
Have you ever wondered what it’s like to be a leader in the A/E/C (Architecture/Engineering/Construction) industry? Whether you’re a seasoned professional or a recent graduate, Up in the Air is your front-row seat to all things A/E/C, business, and more. Hosted by Danny Zimmermann, PE, Executive Principal and CFO of Cleary Zimmermann Engineers, Up in the Air dives into open conversations between industry leaders. From first-hand stories to hot takes to career advice, Up in the Air is your listening destination. Learn more at https://clearyzimmermann.com/.
Up in the Air with CZ
Episode 3: From Blueprints to Briefcases with Steven Marrone
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Welcome to Up in the Air with CZ! Danny Zimmermann, PE, is joined by Steven Marrone of Benjamin, Vana, Martinez & Cano, LLP, to discuss his history as an architect-turned-attorney, errors & omissions, the role of insurance in the design & construction process, and much more. Learn more at https://clearyzimmermann.com/
Steven Marrone, Attorney
Benjamin, Vana, Martinez & Cano, LLP
Steven Marrone, Attorney for Benjamin, Vana, Martinez & Cano, LLP, represents design professionals in litigation, whether in court or arbitration, providing counsel on transactional matters and contract formation, and assisting clients with risk-management best-practice seminars to reduce potential exposure through improved project management and delivery practices. Steven is also a professor at the University of Texas at San Antonio.
Disclaimer: This episode is for informational and entertainment purposes only and should not be taken as legal advice.
Hello again and welcome to another episode of Up in the Air, a show about designing buildings, building people, and just finding ways to be better. I am your host, Danny Zimmerman, executive principal and CFO with Cleary Zimmerman Engineers. Thank you for taking time out of your busy schedule to be with me today. I hope you'll leave a little bit lighter and better for the listen. Okay, I'm not a fisherman, but I do enjoy the fish. And I've been told over and over again not to bring bananas on the boat because it's bad luck. Have you heard this, Steven?
SPEAKER_02I have not heard that.
SPEAKER_00But today I brought an attorney onto the set of the podcast. No, in all seriousness, I am looking forward to talking about legal issues today. For the next few minutes, I have the privilege of speaking with attorney Stephen Moroney with Benjamin Vanya Martinez and Cano LLP. Thanks for joining me today. I'm excited to hear from you about your background in architecture and then also in law. Disclaimer, this is not legal advice today. We're just having a discussion. I don't know if you wanted to put that in there, but I thought you might, so I wanted to add that disclaimer. We're going to talk about errors, omissions, uh-ohs, screw-ups, just all the things that can happen with a design project and in the construction world. So thank you for being with me today. But first, a segment we like to call Hot Takes from Cool Engineers. And yes, I am your cool engineer. It's time to get on the AI bandwagon. That is my hot take today. I may be a little bit late to the party, but I'll tell you, I'm all in given what I'm learning. I have been spending the last few months just trying to take in every podcast, uh, go to sessions at conference about conferences about AI, uh, talk to my Gen Z son about AI. He seems to be the expert on AI, and I'm really surprised by what I'm seeing. Um I think the power of AI is really going to change how we do design in the architecture and engineering community. Um, in fact, I think this is going to be something similar to what AutoCAD did for our profession back in the 90s, if you remember that. Um I wouldn't have said that six months ago, but the momentum uh behind what's happening in AI is truly revolutionary. So there you go. Don't fight it, embrace it, do your homework. Let's get on the AI bandwagon. Now, Steven, any hot takes from you before we get into our discussion today?
SPEAKER_02Hot takes for me. I think the San Antonio Spurs are gonna go to the finals. I can't say that they're gonna win or not, but I think they're gonna go. I think they're gonna be the Western Conference champions. Uh, I'm excited to see how that unfolds. It's been thrilling to watch their uh progression over the past season or two or longer. Um, and then on a more personal note, I think the best fill uh flavor of ice cream is orange sherbert. Um, and I will go meet anyone outside in the hall or in the parking lot.
SPEAKER_00But is it orange sherbet really ice cream?
SPEAKER_02I you know, my wife Nikki asks me the same question. She said, That's not a valid opinion because Sherbert's not at ice cream. And I say, I don't care, it's the best, and I get it at Baskin Robbins, and so it works. You know, that's it.
SPEAKER_00Well, if Baskin Robbins has it, I guess it's okay. So there you heard it, Spurs in the finals. I my heart wants to say they're going all the way, but I I I that's my heart. I don't know if it's possible at with the young age of this team.
SPEAKER_02It's been a minute, uh, and they've got a lot of complexity to themselves, to the to their opponents, and so it's gonna be exciting to watch all the same. And I'm glad they were even thinking about it because maybe two years or five years ago it wasn't even part of the conversation, but now it is, and so it's like, hey, this is this is great.
SPEAKER_00Yeah, it's so so much fun to watch them.
SPEAKER_02So absolutely okay, Steven.
SPEAKER_00In the AEC community, we typically don't like talking to attorneys necessarily because that means that something has probably gone wrong in the design. So it's uh you're not just on the call for consultation most of the time. Attorneys aren't. But today we're on neutral ground, I'd like to say. So uh we're gonna talk shop with a bona fide attorney. But before we kind of dig into issues, I'd like to hear from you just your background. Uh, what is super cool about having you on the podcast today is you are an architect, first, turned attorney. So I am dying to hear that story and uh how you made it from architecture, a licensed AIA architecture to practicing law now.
SPEAKER_02Aware a little bit of humility or shame in describing that. I can be a bit impulsive from time to time. Um, but you are correct. I am a registered architect. I practice in architecture for a number of years before I went through my midlife crisis and became an attorney. Interestingly enough, uh I'd been working at the firm for a period of time, started to, you know, sort of wonder what else, you know, it wasn't quite the fulfillment that I was looking for. And random enough, um, the Central Intelligence Agency had put up a listing saying that they were recruiting people with architecture education in their background. And I thought, oh, this would be so cool if I went and became a spy. And so I visited with my wife Nikki, and I told her, It's like, hey, you know, the CIA is hiring architects, maybe I could do it. And she's like, I'm not, I'm not moving to Virginia. Um, and so I was like, okay, well, you know, that's the end of it. Um, and that was as close as I ever became to being a spy. To being a spy was uh, you know, huh? I wonder what if. But around that same time, um, there was a case, uh, the law on SCV versus Ebbie construction case that was making its way up to the Supreme Court. And in that case, in particular, there was some allegations back and forth between the construction team and the design team. And there was a concern that the uh construction team was going to effectively crack the nut and be able to pass on liability to the design team. Um, it was an interesting case. It caught the AIA's attention here in San Antonio. I was serving on the board or, you know, was close to the board at the time, and they said, hey, what we we need to go and listen and hear like how this case is unfolding. And I thought, okay, you know, sure, I'd love to go. I went, met some other attorneys, and I thought, oh, you guys are interested in this is cool. I think I could handle this. And uh I think within a week I signed up to take the LSAT. And um, I may not have told Nicole that I was gonna do that, but eventually I did. Um, as an aside, that was in 2014. The law on SCV case is still good law in the state of Texas. It still does uh control or manage how liability flows from an owner down to a construction team or to a design team. Um it's still valid law. It was interesting. It was an interesting presentation, and it's um it's a good case to read about.
SPEAKER_00So that case or that uh board experience is what propelled you to go presumably, did did you spend any time practicing the LSAT? I only asked because my son is thinking about the LSAT right now, and or did you just go take it and scored well enough and went to law school?
SPEAKER_02Uh so that's what resulted or caused the disclosure to everyone that I was interested in doing it is because I did have a practice and it's like, what are you doing up there for two or three hours at a time? And it's like, oh well, you know, I'm practicing my LSAT, my LSAT exam. Um, it is a challenging test. It's an interesting test, you know, it's just part of the process. Um, I would encourage your son to practice as much as he can and just go through as many different repetitions um just to get comfortable with the format, the language of the tests. And this is gonna fold over to the bar exam. Um, that was a monster. But nonetheless, you know, just practice it, get some experience hearing what it's like. Uh, and then that way, whenever you're in the in the saddle doing it for when it counts, it's not that foreign. And so much between you know, scholarship and acceptance and all the rest is contingent on LSAT performance. It's uh it's a tall task.
SPEAKER_00So the other reason I was excited about having you on the podcast today, and uh few people know this, but I before Wade and I founded Cleary Zimmerman, uh, had that story not taken shape the way it did, I was really strongly considering going to law school as an engineer. And uh I'm sure my life would have had a very different pathway. But I I almost went to law school and uh took the same path you did on the engineering side. Do you do you do you ever think about what if or I do, and I have these very crazy fleeting moments where I'm like, you know, maybe I could still go back and do law school now. But just the other day I was talking to someone, I'm like, you know what, I would not want to be a student at almost 50 years old right now. How old were you when you went back?
SPEAKER_02So let me think about that. 30, I was 35, 36. So I wasn't, you know, I wasn't, I was, you know, quite midlife. Yeah, but I was exactly. Um, and uh I started law school, had a child, uh, and then number two was born um in during the summer of my my 1.0 year. And so that you know, life was happening full tilt, full throttle. Um, compared to some of my law school classmates who uh you certainly represent the smartest and the brightest, and they're certainly much smarter than I am. Um, some of them had just finished undergrad, or you know, they took a year off, and so they were 20 something, and you know, it wasn't a big deal for them to stay up until 2.30 in the morning, and I'm like, man, I gotta go to bed. I'm tired, you know, I can't do it. Um, and so uh there was a little interesting contrast uh age-wise, uh, it not generational, there wasn't a big generation gap or anything to that extent. Um, but certainly there was some age point related to that contrast.
SPEAKER_00Yeah, I bet. All right, let's jump into some issues. I'll tell you over the years, of course, we've had the occasion to work with attorneys on various projects. And uh I'm gonna call them projects today. I'm sure you may call them cases, but on various projects. But the reason uh we wanted to talk, I wanted to talk with you is with almost no exceptions, those projects where we had to get legal help involved or we had attorneys representing us, they weren't great experiences. Honestly, they were they were frustrating. Um and it's because in my experience, the attorneys that we worked with just didn't they may have been construction law attorneys assigned by the insurance company or as defense for us or whatever the case may have been. But I didn't feel they had a really good grasp on uh design and construction and the nuances, especially in design and what happens in our world. Now, the exception to that, and the reason you're on the pod with me today, is because you have worked with us on a project, and we thoroughly enjoyed that process. And I don't know if it's because of your background as an architect, but you you seem to get the issues. You understood um the vagaries of design and what happens in architecture and engineering. Um, so I really just want to say thanks for coming on today, and I'm looking forward to talking about these issues.
SPEAKER_02That makes me feel really good. I don't get a lot of validation in my work from time to time, uh, most of the time.
SPEAKER_00Not very often people are complimenting attorneys.
SPEAKER_02No, no, it's not. Um, especially design professionals, because look, um, and I can certainly empathize it whenever I make a phone call, it's like, hey, I'm your attorney, I'm calling about this, that, and the other thing. It's like, oh, why am I talking to you? And you know, there's like a frustration about it. Um, but at the same time, you know, I think it does help to have that lens and say, look, we're gonna be dealing with a lot of gray space, and I gotta be able to ask you questions, and you need to be able to give me a response and just trying to short short circuit that discussion as much as possible to get down to, hey, was an error made? Was an omission made, or was something else at play that caused the issue that we're here to talk about?
SPEAKER_00So you've teed this up perfectly. In the intro, I teased errors and omissions, and you just said that. And I don't think any discussion about design issues or conflicts on projects or liability can start for our audience and just helping them to be better without talking about the definition of errors and omissions. Can you take a couple of minutes or a minute or two and just talk about what those two words mean and the significance of them and the difference?
SPEAKER_02I will do my level best to. Um hopefully most people know uh errors and omissions insurance is what is uh available for design professionals. Um imagine if you're driving your car and you go up to a red light. If you if you don't stop at the red light and you just go right through it, uh you've committed an error, right? You violated the law, you were supposed to come to a complete stop, look both ways, make sure it was clear, and then go. Um, that's an error. Um, and then if you can imagine for an ex for a moment the same scenario, you're gonna make a right-hand turn, uh, you got to turn your blinker on, right? You don't turn your blinker on, you may get a ticket, you may cause an accident, whatever the case is, that's an omission, right? You forgot to do something that you were supposed to do, or you excluded something. Um it still falls within the realm of, hey, it's okay, people make mistakes. And it that's one of the hardest messages sometimes to convey. It's like, hey, perfection is not the expectation here. It may be what we all are striving for as design professionals, but perfection is not the bar, right? It's okay to make mistakes, it's okay to make errors and emissions, that's why we carry insurance to that extent. Um, and that's the reason why bottom feeders like me exist, um, is because that happens, right? Um, and so that if you take that car driving example and apply it to engineering or architecture, you think about all the decisions, all the all the design solutions that occur during the course or lifespan of a project, from the first sketch to the you know, paints drying on the wall, um, there are lots of opportunities for errors and emissions to occur. They're not necessarily wrongful, um, but they do occur. And sometimes it results in a dispute or a project as we're here to talk about today. Yeah.
SPEAKER_00So I'm gonna open a can here. As an engineering firm, I I tell everybody we're we're not gonna be perfect, we're gonna make mistakes. The way I've always seen the difference is in terms of who's responsible to correct it or who's responsible to pay it. So an error, I want to be first to the table to say, hey, raise my hand, that was me. How do we make this right? Because I don't want to have the next meeting being with Stephen. I I want the owner to be happy, I want the client to be happy. But an omission, on the other hand, when it comes to construction and and and building what we design, an omission would have had to have been there anyways, right? So technically, and you correct me if I'm wrong, we're not we're not liable necessarily for an omission. I realize that doesn't apply across the board, but it can go in a couple different directions.
SPEAKER_02Is the the the famous attorney responsible? It depends. Um in some instances, yeah. You know, as a design professional responsible charge, you are responsible for making sure all the parts and pieces for the design are in there, right? I mean, imagine if you're you're designing um an HVAC system, for example, and you know, you omitted the controls. Well, you know, the standard of care says you should put a control in there just to make sure it does what it's supposed to do. The flip side of it is, you know, the if the owner says, well, hey, we want a a 50-ton, you know, chilling system, uh, and your design says, hey, we only need 35, it's not an omission to exclude those other 15 tons. Like, no, that's not part of it, right? Like, if you want the extra tonnage, if you want the extra capacity to cool or to heater, as it were, um, it's not an it wasn't wrongful for me to not put that in there. You're gonna have to pay for that, right? That's a betterment. Um, and that raises an interesting question in terms of defenses that are available to the extent that a design professional has alleged to have done something wrong. If it's an error or a mission, well, is it a betterment? Uh is it something that the owner should have had to pay for to begin with? Um, and then it kind of moves the needle back and forth an hour into the mix of it.
SPEAKER_00Does that word betterment apply across the board or is it just with public agencies, or is that just case, is that just law in general, construction law?
SPEAKER_02Construction law in general. Okay. Uh and believe it or not, you know, you say betterment and it gets people's attention, and there's normally a pretty good fight about it to say, oh, well, we should have had this to begin with. It's like, well, you had to pay for that to get it to begin with, you know, and so it kind of goes back and forth. And all of that, all of that boils down to or comes back to the standard of care and whether the engineer or the architect or even the contractor for that matter, they're they're it's not a standard of care for them. But, you know, should that information, should that design detail have been included to begin with? And that's where I guess you could say the ground zero of the dispute exists, whether or not the answer to that question is yes or no.
SPEAKER_00So I want to pull on this uh standard of care thread, but not yet. I I still want to drill down in betterment. In your example, if I forget controls as an engineer and the job is under construction and ongoing, am I responsible to pay for the controls to be put in, or would that be betterment? So that's a good question. It's not different in tonnage, not th 35 to 50.
SPEAKER_02Correct. Um so the the the the owner or the claimant may make the arguments like, yeah, well, you know, we expected you to do this, we paid you to design this, we paid for this to be done, you're gonna be responsible for, or you know, the you know, the the the installer comes back and says, Well, hey, I'm gonna have to undo and unwind a fair amount of my work and redo it to put this control system in, or whatever the case. You may be on the hook for that part, right? Okay. Um it but but it it it always depends. It always depends on some of the facts or some of the decisions that were made, or some of the recommendations that were made and were rejected during the design time period resulting in the actual built work. Um, and that's where a lot of the dispute arises. That's one of the reasons why it's like, hey, show me your emails, show me your meeting minutes, and all the rest. And it it's a tall order in that regard. But sometimes there's helpful information in there. Some people are really good about asking the question. Hey, what about this?
SPEAKER_00It's a dirty subpoena word on the emails and stuff like that.
SPEAKER_02That that it it it could, oh my goodness, it would be it can be filthy. Um people can spend more money on e-discovery than the actual dispute itself, just because email is so prevalent these days, uh, and it's just the amount of paperwork that is. I remember talking with an architect whenever I was first coming up, and you they were like, Oh, yeah, we used to bill by the number of sheets that we would create. And so there would be a whole drawing sheet with one detail on there, and it's like, yeah, but that's not necessarily efficient, where it seems like it's the exact opposite now. It's like, you know, there's 50 emails describing one issue, you know, and it's like, hey, this could have been, hey, here's an email, here's a phone call, and that's that. But anyway, it's it's interesting to think about how it's sort of progressed and how it's changed over time. Um, but you're right, subpoena can be a dirty word.
SPEAKER_00I feel your pain on discovery and subpoena a number of years ago. Um I'm staying in legal, but I'm going on to the tax side here. But uh we have always taken advantage in the tax code of the RD credits. And a firm that we were working for had been raided by um the FBI essentially, and IRS got involved, and the case was against them. But in the process, they took their client list and just started broadcasting subpoenas out. And the subpoena to us, it took so much effort and so much time to pull all those documents and prepare all that. And then, of course, we're we're concerned, so we go get representation just to make sure we're sending the right things over to them. But uh yeah, the pain can be in the process for sure when you get involved in disputes like that.
SPEAKER_02Well, and be honest, you didn't become an engineer, you didn't start your business. Uh I've never met an architect who said that they started uh architecture to deal with people like me, to get involved in disputes, is because you want to do the work. Right. Uh and much to your credit and much to the industry's credit, you know, the relationship building that goes on, usually whenever a claim gets made or litigation ensues, it's okay, we've reached a sour point in that relationship, and it's time to go, you know, sort it out, if you would, or get into the argument. Whereas the majority of the time, otherwise, it's like, hey, let's just let's just get along, let's figure it out. Um, I'm gonna give you this, you're gonna give me that, we're gonna see if we can make the parts and pieces fit. And that makes sense. I mean, that's just how it works, it's how it's supposed to unfold. But one out of 10, one out of 20, okay, now I gotta I gotta ask you to give me your records, uh, I gotta file a lawsuit, I gotta go get a certificate of merit and all the rest. And then it goes a different path.
SPEAKER_00So at risk of being too dry, uh, this is a legal discussion on the pod today, but at less at risk of being too dry, um explain that term standard of care to us that's in the con that I see in the contract. All that what does that mean?
SPEAKER_02The standard of care will always result in some back and forth between clients, architects, engineers, and whomever. But the standard of care effectively, that's the bar that a professional is going to be measured against, right? Whether or not they provided their professional services uh commensurate with the standard of care. If they did, they're okay. If they didn't, okay, now we may have a dispute. And that is an oversimplification, kind of dumbing it down. Um, it's sometimes difficult to describe it because going back to the driving example, you expect that all the other drivers on the road with you are gonna follow the rules, right? Um, they have a standard of care that everyone is sort of adhering to to be responsible, to be reasonable, and so forth. Engineers and architects also have a standard of care, but it's got a professional caveat to it. How would another architect behave in this circumstance? How would another engineer behave in this circumstance? Would they come to the same or similar conclusion that you came to in uh making that decision? The closest example I can give to it is imagine if you got a room of uh a hundred other engineers and you flash your detail or your specification up and said, Okay, this is what I did. You know, who here agrees that this is reasonable, though, or they they would have come to the same conclusion. If 51 of those engineers raise their hand and say, Hey, we're on board with it, arguably you've met your standard of care, right? It's the majority. Yeah, you know, 51 of a hundred other our uh engineers practicing this. Great example. You know, they're hey, we're on board. If only 49 raise their hand, okay, well, maybe you're gonna get some egg on your face.
SPEAKER_00Maybe so the CFO in me has heard this distilled to a percentage of the fee or the contract, like 2% or 3%. Have you heard that argument? I have not. No? Okay. That's what I've heard before is uh um the best way to describe that is it's within oh two to five percent of your total fee is involved in the change or the error, so you're within the standard of care. But maybe that was something that that attorney was the unique argument he was trying to make.
SPEAKER_02Interesting. There may be no legitimacy to that, but well, it it it it and look, there's so much gray area surrounding it that sometimes it's helpful to have some go by.
SPEAKER_00Or maybe it was construction value. That's what it was, like two percent of the construction value in terms of changes.
SPEAKER_02Sure. Well, and every once in a while, and I'll tell you the majority of claims that I've worked on, they're not catastrophic. Every once in a while there is. There's one where, you know, um the structural engineering system was under, you know, underdesigned and the whole building needs to be torn down, and it's like, okay, that's a huge someone obviously is going to be outside of their coverage, and um, that's bad juju. Um, but otherwise, usually it's within a realm of reasonableness in terms of okay, it and not to say that it isn't a big mistake or a big a big issue. Um, you know, it's you know, 1%, 2%, 5% of the total construction value to make a repair or remediation or replacement, what have you. Um so I think having some sort of guideline or at least some sort of load star is helpful in terms of figuring out, okay, what's the value of this potential exposure? What is this claim actually about or worth? What are we really in for? And that's sometimes that can be a huge factor, especially with um, especially with design professionals, their insurance system works a little bit differently. It they operate under eroding policies, which means as soon as the phone call gets made, as soon as the claim gets made, the meter effectively starts running. As soon as your attorney shows up, or as soon as the expert shows up, if you've got $10 in coverage and your attorney costs $3 and the expert costs $2 and vendor costs $2, you're halfway there. Exactly. Um, which is a little bit different than uh some of the other types of insurance policies where they don't erode. You know, it's from day one to the day, you know, to day $400 or whatever it is, the the that full policy amount remains there. And so having discussions and being able to quickly evaluate, like, hey, what do we need to do to get resolution on this? Because the the meter is running and we don't want to deplete it. Um, we want to try and make everyone as whole as we can, or at least say, okay, we're gonna be in a we're gonna be in a fight for the long haul, and you know, here we go. Just be prepared for that.
SPEAKER_00Is insurance always when you get involved?
SPEAKER_02Not always. Um usually the call comes whenever, hey, there's a question, uh, there's the allegations or there's the smell of a claim. Uh and I would I would advise any architect, any engineer, like have a good conversation with your professional liability insurance carrier. Um, some of them have loss prevention mechanisms in place to the extent that, hey, it hasn't resulted in litigation yet, but I could use some help, I could use some legal counsel or whatnot. Or if you uh if you have your own legal counsel separate and apart, don't hesitate to make a phone call. I get it. I know I I I don't like talking to other attorneys, you know. Um, but at the same time, if it helps, if it helps keep the ship going in the right direction, just pull the trigger, make the phone call.
SPEAKER_00So, what is the nature of of disputes usually? Is it does it fall into the errors and omissions, or are there damages that come into play? Are there injuries? Well, how does this normally unfold? I I guess do you have those unique cases that are interesting?
SPEAKER_02You cited a structural failure earlier, but every case is different, just like every design project is different. You know, some of them may follow a typical track, or you know, hey, I get the parts and pieces, but there's this little outlier that really moves the needle in a different direction. The same is true in litigation, the same is true in disputes. Um sometimes uh usually they are not catastrophic, usually they are not in a complete demolition of the whole thing. Um sometimes uh it's just about money, um, especially with uh perhaps an owner that is overextended or GC that's overextended or even a design team that's overextended, you know, however the case may end up being. Um a lot of times it's just about a difference of opinion. Uh someone has told the the owner or the GC or the architect engineer, you know, hey, it could have been done this way. Um and the response is, well, we did it the different way, and now we're in a dispute. Um, so sometimes it really just boils down to a difference of opinion about how something should have been done. And those are the ones where uh those types of claims can be incredibly difficult because there's not going to be a clear cut, okay, that's the answer. You know, it's like, hey, you're entitled to your professional opinion, you're entitled to your professional opinion, we're not gonna agree, we're not gonna get that consensus. Um, so let's go find out.
SPEAKER_00So setting aside good design practice in architecture or engineering, and setting aside quality control and document quality, things like that, what would you tell us is the best way to resolve disputes? Maybe before you get involved and then after you get involved. And you you're gonna be the mediator, of course, once you're involved. Well, I guess sometimes you're the mediator, but ha ha what's some good practice to to keep out of a dispute?
SPEAKER_02To stay out of a dispute, I think the best, and again, I'm not here to awful legal advice and all the rest, and we put the rest of them there. Um but the best way to avoid that kind of dispute, avoid escalation, right? And part of that I think is as soon as something appears or has the scent of being an issue, uh identify it, call it out. Um, hey, let's talk about this. You know, whether or not it's between um you as an engineer and you're if you're if you're providing services to the architect, hey, Mr. and Mrs. Architect, we got to talk about this. This could be an issue, this could be a struggle down the road, or hey, madam owner, we gotta we gotta visit about this because the control system that you wanted doesn't necessarily match up with the, you know, whatever the case, whatever the case is, right? So the best way to avoid a claim maturing into a full tilt dispute um is to disclose. Disclose, talk about it. If you try and walk away from it or try and forget about it, or try and ignore, I mean, and you know, oh yeah, um, and you've got kids, you know what it's like, they try and hide stuff under the bed, and it's like, no, that's that's not how that works. You know, we're gonna find out. Um, and then it becomes much more difficult, it becomes much more complicated to address once you've left and you've moved on and things have happened, and it's like, okay, how do we unpeel the onion to get back to the heart of it?
SPEAKER_00Yeah, we had a uh a gentleman that ran our Brian College Station office with us a long time, veteran of the industry. He used to say, um, eating crow doesn't taste any better when it's cold or when it gets cold. You got to deal with it up front.
SPEAKER_02That's right.
SPEAKER_00And I think to your point, in my experience, yes, facing it head on, yes, talking about it, but also being prompt in those communications, being quick to being responsive, just staying on top of it, showing that client or that owner that you're interested in getting this fixed the right way before everybody starts throwing fists.
SPEAKER_02That's right. And, you know, one thing that I visited with numerous other design professional clients about it's like, look, no one's accusing you of doing something wrong necessarily. It's just an I mean, it's a messy business. Design is messy, construction is incredibly messy. Things are not always gonna work out the way that you want. And so whenever something inevitably comes up, just talk about it. Just call your call your counterpart and say, hey, you know, we heard, we saw, we did this thing, I'm gonna fire, I'm gonna have to send you a letter, you know, explaining it. Um, but let's see if we can work together to resolve it. I mean, it goes back to the relationship, you know. Hey, can we just talk this through? And I get it, if the the pressure needs to get ratcheted up and hopefully council doesn't have to get involved. Um, but if it does, just you know, no one's gonna benefit from the surprise of X, right?
SPEAKER_00Well said, because there's there truly is, even in the best design project, there's so much interpretation, there's so much intent, there's so much inference that's involved in what we do. It's just a really every project is completely custom and involves countless tradesmen and and people involved in the industry, from you know, starting with the EIT in our world, the junior engineer, all the way to the licensed plumber that's putting it in in the field. There's just a lot of detail and complexity in our business.
SPEAKER_02No, that's absolutely correct. And you know, whenever there's a dispute that's brewing, and what you just described is is is perfect. Um imagine all of those different parts and pieces and people in that relationship that are in the trying to execute that that design, trying to execute that work. Now, imagine that entire group of people are in the bread aisle at HEB and the old lady who's picking up her loaf of white bread or wonder bread for the week. Imagine that entire group of people trying to explain to her why they're right and why the other side is. That's you know, that's and whenever the push comes into a shove and we got to go down to the mat, that's a conversation that needs to happen because it could be the old lady in the bread aisle who's deciding the outcome of that. Sitting on the jury, sitting on the jury. Um, and you know, the the licensed plumber that's doing the installation work, you as the principal, the EIT, all educated, all articulate. I mean, hopefully. Um, everyone has their story to share, everyone has a story to say. The standard of care is not black and white. We're gonna ask the old lady in the bread aisle to decide, hey, did the plumber mess up? Did the designer mess up? Did the you know the manufacturer? You know, it's it can get complicated, and that's why it's easier, better, usually in most instances. Hey, unravel things, put it together, try and make right before we have to go visit with grandma on the bread aisle.
SPEAKER_00Do most of these cases, do the vast majority of cases get resolved before they make it to litigation? Yes. Or am I saying that right? Um, yeah. Trying it essentially or in the courts?
SPEAKER_02Truth. Yeah. Um, more often than not, not always, but more often than not, uh, there is resolution before a jury a jury renders a verdict or before a judge renders a verdict. In arbitration, it may be a little bit different to the extent that arbitration process sometimes is a little bit faster and you know, a little bit more straightforward. But usually, usually, at least in my experience, resolution occurs more frequently to the extent, because everyone recognizes, like, hey, there's a huge risk. Again, asking the old lady to decide, um, there's a huge risk, there's a significant expense going through that process, and there's a there's a a massive unknown. Who knows how this is gonna unfold, if it's gonna go this way, if it's gonna go that way, it could be a million dollars here, it could be 10 million there. We don't know. Let's just hold our nose and make peace for it now and move on.
SPEAKER_00I've heard tale of this um 10-year rule. Is that a is that a thing in construction law?
SPEAKER_02It is. It's very much a thing. The the statute of repos. Um there's usually the statute of limitations, right? If something bad happens, you've got two years to file a claim under a negligence theory, four years under a breach of contract theory, uh, without going into the weeds of that. But with buildings, I mean, you know, the building that we're in today is an it's an old building, it's been around for more than two or five or twenty or fifty years. The statute of repose means from the date that the building or the project was substantially complete, regardless of the claim, you've got to assert a claim within 10 years. And there are a couple of triggers, there's a couple of levers that will extend that deadline a little bit, but those are kind of those are those are exceptions to the rule, if you would, but usually it's 10 years. In some instances, just recently the legislature passed uh some rules, especially for public, uh publicly funded work. It's truncated to eight years from the date of substantial completion. I think under uh RECLA for single-family residential home design, it's six years. Uh, but please don't quote me on that. I don't do a lot of RECLA or single family work. Um but usually between six, eight, ten years is always a good target. That's the one that I ask people to circle on the calendar. A after 10 years, your risk window arguably should be closed, um, subject to a couple of exceptions.
SPEAKER_00Okay, good to know. One of my last questions is around contracts. How important is a good contract, or or is it kind of just the ground rules, and then ultimately it comes down to the old lady in the in the bread aisle at HEV.
SPEAKER_02Well, and and this goes back to one of your questions earlier about like when to when to spot the issue, when to say, okay, it's about to happen, or something is about to happen. You can circumvent or at least protect yourself or at least set the table for the meal or the fight that you're about to have in your contract. And if there's any party and advice that I could offer, it's front load that process, do the best that you can up front, put as many protections in your contract as you can. And I'll back up even one more second. It's not just about playing defense, making sure that you're compensated correctly for the work that you're about to do, making sure that the path to additional services is clarified, just so that way, hey, if you want us to go out there and make some reveal, you got to get paid for your work. You know, you do. Um, so in addition to protecting yourself, uh, protecting your business, protecting your firm, protecting your design, also make sure that you're protecting, you know, your your business stream to the extent that, hey, we are we've done our level best to figure out how the parts and pieces are supposed to fit together, who's supposed to call who, and so forth. Um, don't, I would strongly discourage relying on just a basic, oh yeah, we have a contract, sign it, you know, here's the back of the napkin. Yes, people still do that from time to time. Or an email?
SPEAKER_00Is an email a back of a napkin?
SPEAKER_02Uh you know, it in an email can still constitute as a contract, uh, depending on uh hopefully there's enough sufficiency in the terms within it. Um uh but if you can get a contract in place with your counterparts, it's important. Um and uh full disclosure, I I work with a fair amount of architects and engineers are very good at this. You know, they submit their proposal and they've got their you know terms and conditions and all the rest, and the architect never stops and reads through that. They just say, Oh, okay, the engineer's on board, and it's like, hey, did you read what was in there? Because um they're protected and you may not be, you know, so uh uh but by all means going through that process and being methodical about it is important. It's always worth time, effort, uh, the investment that you may have to make and you know, preparing those documents, it's always worth it, in my opinion.
SPEAKER_00So I want to wrap this all up just by asking a question about your career. And we touched on this at the beginning, but how do you think your time as an architect designing working in the industry directly before you went to law school, how is that in how does that inform what you do today and and how did it prepare you for this legal world?
SPEAKER_02It's gonna cut both ways. Uh, it's a huge Achilles heel to the extent that whenever I call and talk to a client, I know they're upset. I know that they're upset because somebody is accusing them of doing something wrong. And at the end of the day, architects and engineers just want to do the best that they can. They want to make a beautiful project and contractors too, for that matter, right? Everyone wants a project that's on time, on budget, um, and something that everyone's proud of. Um, and then when you get turned around and poked in the eye and said, hey, you're doing some, they get upset, I get upset. Yeah, you know, and it's like, no, that's not it. But the flip side is if my architect clients or engineer clients say, Well, you know, yeah, we tried to work through this, you know, we issued an ESI or an ASI or whatever the case is, like, okay, I understand. You guys were talking about this issue beforehand, which meant there's some back and forth. And okay, well, now we can start mounting an appropriate defense to point that out. Hey, no, that wasn't an error, that wasn't an omission. Um, that was something else or a delayed response from the owner, whatever the case is. Um, and it's helpful, I get some gratification out of being able to have that conversation. I know the difference between an ASI and an RFI. Um and it's it's it's helpful to be able to have that conversation, maybe at speed, um, to work through a little bit more efficiently.
SPEAKER_00I said that was the last question, but if you could be in any other area of law, just in a in a different world as a different Stephen, what would it be?
SPEAKER_02Uh I don't know. I don't know that I would it in I I've had the the the the pleasure and misfortune of interacting with um IP attorney, intellectual property attorneys, those boys and girls work really hard. I'm not cut out to do family law, I just can't do it. Um uh I've done a fair number of correct cases, and you know they're they're all unique in their own way and rewarding in their own. I I don't know, I don't think that would change it. I think I would stick with it.
SPEAKER_00Then you chose well. I can't. You're right where you were designed to be.
SPEAKER_02Uh I just need to convince my spouse of that, you know.
SPEAKER_00Yeah. All right. Any final thoughts on uh errors, omissions, the legal world, and and uh design and construction?
SPEAKER_02One other thing that I'll add to it, um, and you're a pilot.
SPEAKER_00Yes, sir.
SPEAKER_02Okay. So um one of my family members is uh used to be an aviator. He flew in the backseat of F-15s and he's retired now. And so I called him up one day and I said, Hey cousin, you know, tell me about tell me about the ejection ejection seat. How does it work? What do you do? This, that, and the other thing. And he told me two things, and then a third thing that I wasn't expecting. The first one is if you're gonna crash and burn, you know, just get out, right? Like you you you you see it.
SPEAKER_00I don't have that option.
SPEAKER_02Okay, true. You may not. Um would be nice, but wouldn't it? I mean, you know, uh I'm not cut out to fly jet. Um the second option he said was you know, you're flying along and then you know morning bells go off or whatever the case, you climb. And he's like, you try and reach altitude, and while you're doing that, you're troubleshooting and trying to work the problem, but you're also making an affirmative effort to protect yourself so that hey, we've run out of options, we've run out of tools, we've got to go. Yeah, okay, we're at it we're at an appropriate altitude. Um, pull the handle and get out. Yeah, and I think it's hard sometimes, and I've seen a lot of uh design professionals and builders and owners really dig in and try and hold on to it. It's like, hey, look, just cut your losses. Uh we're this is a dispute. It's it's gone sideways, you've done your best to try and sort it out, it's time to get out.
SPEAKER_00Wow, that's a really good analogy because I think, at least in my experience, how we practice and how we face disputes is usually I would rather early on settle for something that makes the client happy and the relationship stays healthy than end up Getting in a long dispute, pay a lot of money, and then lose a client also in the process.
SPEAKER_02That's right. I mean, and look, there's options that are available. As soon as you know that they're and and part of that is you know, creating a creating uh an environment of trust and confidence to the extent that you even your EITs that say, oh, this doesn't feel right. Let me call my principal and say, hey, could you put eyes on this? Um, but while you're doing that, while you're climbing, it's like, hey, can we make some peace out of this? Can we try and uh mitigate the loss, mitigate the damage? Can we try and get to some resolution and and and you know just move on down the road because we care about each other, we want to do the right thing. And then if it doesn't work out, okay, we know what to do, we gotta pull the handle.
SPEAKER_00By the by by the way, the aviation uh term for that is airspeed for altitude. So you're trading airspeed for altitude. As you climb, your airspeed goes down. Oh, but you're giving yourself options. Yep.
SPEAKER_02That's right. Keep give yourself options. I'll tell you the last thing that he told me about that, and this is something that they that he he he did training every year. Um, the ejection handle is hard, it's heavy. Like, there's no half measure. When you pull it, wow, the metaphor there, you've got to pull it, you've got to mean it because you're getting the fucking like it's over. Like there's no have there's no mistakes doing that. Like repairing.
SPEAKER_00I can imagine that feeling of that pyrotechnic going off under your seat, just blasting you into the air.
SPEAKER_02I'd rather not.
SPEAKER_00You know, you're not that adventurous.
SPEAKER_02No, no. Um I'll stay on my bike. Yeah, yeah. I'll stay on my bike or girlfriend.
SPEAKER_00Oh, we missed the whole segment on bicycles, but that's all right. Maybe next time.
SPEAKER_02Next time.
SPEAKER_00All right. It's time now for a little levity in the podcast, Steven. We are gonna do a segment entitled Overrated, Underrated. So the goal here is I'm just gonna state something and you're gonna tell me whether it's underrated or overrated, and maybe tell us why. So we didn't talk about this earlier. The first underrated, overrated is the new UT San Antonio or UTSA logo.
SPEAKER_02I'm gonna say, I'm gonna say I teach over, I'm gonna pass on it. And the reason being is this is that UTSA is growing. I teach a class at USA.
SPEAKER_00I did not know you teach over there. Okay.
SPEAKER_02I do. I teach a class over at the architecture program. I'm in and I graduated from UTSA. I got my Bachelor of Science in Architecture there. It's uh that's all doesn't others. Go runners. Yeah, that's right. Go runners. Um I I I I I'm proud of my alma mater to see them growing. Um, I don't know, we'll always be roadrunners. I mean, I don't care what the logo looks like, you know, for being candid.
SPEAKER_00Well, UT, you have to take a different road there. I'm gonna say overrated. I don't know. I'm not a big fan of the changes. I am happy that UT Health and UTSA merged. Um, I think it's good for the institution long term. I think it's good for San Antonio, it's good for the economy and community. So that's really exciting. But yeah, UT San Antonio.
SPEAKER_02The logo?
SPEAKER_00Yeah, I don't know about the logo. All right, St. Mary's Oyster Bake.
SPEAKER_02Uh I'm gonna say, I'm gonna say overrated, and I've never actually gone all the way through it. Uh, but I was at, I was in, I went to St. Mary's Law School, and I remember the school, the campus would shut down during oyster bake, and it was always it, I mean, it looked like it was unpleasant to come back to school the Monday after. Um, the campus did and it wasn't for lack of effort, but the campus was a mess.
SPEAKER_00Just trashed for it.
SPEAKER_02It was just oh, it was just trash. But the flip side, I'll say it's underrated because a lot of the revenue that comes from oyster bake, you know, it pays for a lot of kids to go to school. So to that, it's like, hey, keep on with the keeping and deal with it.
SPEAKER_00Good point. All right, unplugging to spend time with family.
SPEAKER_02And it's gonna catch me in the feels. Uh, it's definitely underrated. Um, no one's gonna remember the projects that you work on, no one's gonna know how many hours I bill. It's just the time with our kids.
SPEAKER_00Yep, yep. Very, very well said. The do not disturb setting.
SPEAKER_02Uh that may be overrated. Uh, you know, I'm you're an important person. I'd like to imagine that I'm important. Um, but to get the do not disturb on it, it's like just call me, and if I can't answer, just leave a mess. You know, just whatever.
SPEAKER_00Yeah, I agree. Completely overrated. In fact, I don't know that I I can probably count on one hand the number of times I've used the do not disturb. Um, I really try hard to answer a phone call or take that meeting or whatever. If I'm available, no matter what's as long as I'm not meeting with somebody else, giving them my undivided attention, I I want to answer the phone call. And I think that's the culture we've tried to set at Cleary Zimmerman is just that those are our clients, those are people. We are people firm and um take that time to talk to someone.
SPEAKER_02You want to be available. Yeah, I'm here, I'm gonna get your call.
SPEAKER_00All right, suits the show.
SPEAKER_02I'm gonna say, I'm gonna say that it's overrated. I've never worked, and admittedly, I'm not an attorney in New York City, so I can't say for certain one way or another if that's real or not. But uh in my day-to-day practice, it that is so far from reality, it's not even funny. I mean, it's it's perfect for uh uh comedic relief and like, oh man, my goodness, I wish I had that kind of superpower to remember those things or to you know say that in front of whomever.
SPEAKER_00But yeah. Well, I'm gonna I'm gonna admit I've never seen the show. I had to ask you since you're an attorney, but I've never seen it. Fair enough. Fair enough. Uh how about the club? I noticed today I almost wore a tie today just because I was meeting with an attorney. If I I need to wear a tie. No, but uh, but but suits overrated, underrated. I know you don't have a tie on.
SPEAKER_02I don't I don't have a tie on. Uh I don't know. I you know, just yeah, let it be. I mean, look, we're we we we live and practice in Texas, and there's certain decorum and expectation. I I would never not wear a tie to I'll tell you a funny story about that sometime. It's a little bit lengthy about uh uh a judge here in San Antonio calling out an attorney who showed up to court and um didn't have his jacket on and didn't have his tie on. Oh man. And she was not um, but the way that she handled it was very articulate and very like, oh yeah, I can't hear you. You don't have your jacket on. Um and it was like, what? You know, like, oh my god. So anyway, uh I'll just say dress code's important. I do not own a five thousand dollar suit. I don't know that I ever would, but um like suits.
SPEAKER_00Yeah, um, but I do think the norms have gradually shifted in business and in maybe not so much in the legal world. I think most attorneys are still seeing, but certainly in the business world, ties are not as um ubiquitous as they used to be.
SPEAKER_02It's it's come down or not for better or for worse, for better or for worse.
SPEAKER_00We live in South Texas, and I think it's good that it's come down. It's so and hopefully Wade isn't listening to this podcast because he wears ties three to four times a week and bow ties. So sorry, Wade, but uh He's a sharp-looking fellow. Yeah, yeah, yeah. He does a good job keeping the standard high for Cut it that way. All right, depositions.
SPEAKER_02Oh, uh underrated. And look, you're not going to make or break your case in a deposition. Um, but it's one of the few times that you, as the witness, get to interact with the attorney kind of mono-imono, like you know, face to face, like you're stepping into the room to do it. And some witnesses are really good at it, some attorneys are really good at it, and sometimes they're not. I mean, sometimes people, you know, you know, blow gasket, and that's that. And okay, well, that changes the dynamic a little bit. Um, but I enjoy depositions, I think that they're underrated.
SPEAKER_00All right, AI. I open with a hot take on AI. What's your take on AI?
SPEAKER_02You know, my current profession has gotten a big uh black eye about it, about AI.
SPEAKER_00There's a lot in the news that out that talk about the legal world and AI.
SPEAKER_02That's right. Um, the flip side of it is if we don't embrace it, um, we're gonna be committing malpractice because five or ten years from now, the expectation is hey, what does your AI machine do to help move things forward or whatever the case is? So I think it's here to stay. Um, it needs to be embraced and harnessed appropriately.
SPEAKER_00All right, billable versus fixed rate fees. Do you do fixed rate fees in the legal world? I I've never met an attorney that did a fixed rate.
SPEAKER_02I've heard I've heard that some fixed rate work exists. Most of the time, nine times out of ten, it's billable rate. Um, and it's always funny. I tell my friends, family, and whomever, it's like, yeah, my my meaningful contribution to this uh to society is a six-minute increment. That's the widget that I make.
SPEAKER_00So yeah, so underrated.
SPEAKER_02Yeah, you could say underrated. Yeah, underrated.
SPEAKER_00Uh all right. Working with your spouse. I happen to know you had the opportunity to work with your spouse for a while. Underrated. We'll leave it at this when we're done. But uh, working with your spouse, is it overrated or underrated?
SPEAKER_02I'm gonna say that it is underrated. Really?
SPEAKER_00And in the reason, I'm gonna say overrated, and I have any, but anyways. No, no, no. It's fine. I don't think April will listen to this podcast.
SPEAKER_02Hopefully, my spouse, hopefully, Nikki will pick up on it. Um it's funny. Um, whenever whenever we were working together, it it it's a binary reaction. It's either one or zero. People are either, oh, I I love it, I could totally do it, or no, that's not the way our relationship is cut out. I, you know, and and there's no wrong answer.
SPEAKER_00Yeah, every relationship's different.
SPEAKER_02Every relationship is different. For me, for Nikki, if I can speak on her behalf and I'm gonna do so carefully, um, I think that it was a benefit to our relationship that we got to spend so much time together uh and see each other blossom or go through the road, you know, whatever it is. Um, so we were definitely in the one category, and there's nothing wrong with being in the zero category. I totally get that. Uh, but it's it's absolutely underrated in my opinion.
SPEAKER_00Okay, I'll stick with overrated. I th I see um I think relationships in a in a sense are a a painting of contrasting colors, and my wife and I are definitely contrasting personalities, and uh, while that works great in relationships and rearing a family and enjoying time together, I don't know so much about working hour after hour together. I think that that would be a little tough. She knows this, which is good.
SPEAKER_02So as long as there's some agreement and you're not gonna get flamed whenever you walk in the door, like, oh hey, it's like, hey, Danny, we gotta talk.
SPEAKER_00Um yeah, it makes coordination easy, I guess, for the kids and picking them up from uh after school activities, all those things.
SPEAKER_02Well, and we don't have to devote time, hey, tell me about your day because I saw it, I heard it. And you know, there's like some benefit in that regard. And if she's upset about something, I know why. And if I'm upset about something, she knows whereas now it's like, you know, she has she knows generally what I do, but not necessarily some of the details. So, you know, there's there's a give and take. There's a give and take on both sides of it.
SPEAKER_00All right, Steven, just want to say thanks for joining me on the podcast. Uh it's been great talking about errors, omissions, legal issues and design and construction. Um and really I I I wanted to just broach this subject on the podcast because as architects and engineers in SOQs, we don't like to say, oh, are you involved in a case right now? Are you do you have a pending lawsuit? How many pending lawsuits? But um it's a reality in our business and uh a big reality in our business. And uh I hope today that the audience will take a little bit away from this, and maybe there's some things they they didn't know and they can learn from the legal side of what we do.
SPEAKER_02I hope so too. Um it's a tough it's it's a challenge to fill out that blank. Um, but you're doing a great thing. Keep up the good work, don't be deterred.
SPEAKER_00I didn't tell you this before, but uh any way the audience can reach you, any uh social media handles. Uh again, you're with Benjamin Banya Martinez and Kano LLP, an attorney there.
SPEAKER_02Yes. Uh I don't know if I'm gonna age myself, but I'm not as much on social media, but I'm in I'm I'm with BVMC in the San Antonio office. Uh my email through that, which is on our website, is the easiest and best way to get uh get in touch with me. You're more than welcome to come to my class. Uh, I teach professional practice and ethics at the ETSA School of Architecture in downtown. Um, but those uh through the firm is the best way to get in touch with me.
SPEAKER_00Okay, sounds good. Again, thank you very much for joining us. I've enjoyed our time together. Look forward to seeing you and hearing you next time on another episode of Up in the Air. Take care.