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Open Question: Professional liability language
2

Open Question: Professional liability language

Open Question: Professional liability language

(OP)
As a Civil Engineer in the USA, I receive training from our professional liability insurance provider concerning the language that we should and should not use in our reporting (i.e. we make "observations" not "inspections").  i have a bookmark of prohibited words given to me by my insurance company.

it is my hypothesis that the language that we use now will be tomorrow's no-no's because the litigation will continue to exist, and perhaps grow, regardless of cover-your-a$$ statements.

My questions are:
1.Do you agree?
2.Is this a trend in other countries and other engineering/science disciplines?
3.Examples

noevil

RE: Open Question: Professional liability language

I take no exception to that
*LOL!*

RE: Open Question: Professional liability language

Based on observations made of the situation as presented at this particular instance, the presentation appears serviceable.  However, a more comprehensive study should be made to account for variables not exposed under the present circumstances.

old field guy

RE: Open Question: Professional liability language

Seriously, though, you'd wonder why you pay an engineer to INSPECT something when all he comes up with is an unreadible report that has no legal value. Why would you actually put coveralls on and go out to do inspections while you can write the report at home, you can't be sued anyway?? big smile

I do agree that this does and will continue to lead to language inflation and/or overcautions conclusions.

See also: "hand wash only, no dry clean" on a simple cotton T-shirt...

RE: Open Question: Professional liability language

The sad part of the matter is that, at least in the USA, a "good" lawyer can slither into the courtroom and dismantle just about any language you may have in place, quite often in front of a "jury of your peers" who happen to believe in sasquatch, astrology and that professional wrestling is real...

Bitter?  Who, me?

old field guy

RE: Open Question: Professional liability language

You're all missing the real point.

It takes one company hiring a lawyer and racking up billable hours to come up with the gibberish.

It then takes the second company hiring another lawyer and generating more billable hours to decipher the gibberish and come up with a gibberish response.

Then company one's lawyer spends more billable hours reading the gibberish generated in response to the initial gibberish in order to produce more gibberish responding to the gibberish created in response to the original gibberish.

Then company two's lawyer...

"The first thing we do, let's kill all the lawyers" -- William Shakespeare, King Henry VI

RE: Open Question: Professional liability language

(OP)
i welcome people to comment to my original question.
But, while we're derailed.....

Look at the back of a Q-tips box.  They show about 10 different stupid uses for Q-tips, with pictures.  They then sternly warn you against using them to clean your ears, Hah!

RE: Open Question: Professional liability language

In ISO 9000 world (not civil eng, of course), making observations is part of the inspection.  One wouldn't be able to say "We didn't inspect it.  We merely observed it." because in ISO 9000 you are required to inspect.  So I'm not sure what good that advice really has in other engineering areas.

Matt Lorono
CAD Engineer/ECN Analyst
Silicon Valley, CA
Lorono's SolidWorks Resources
Co-moderator of Solidworks Yahoo! Group
and Mechnical.Engineering Yahoo! Group

RE: Open Question: Professional liability language

The list of "prohibited" words will continue to grow as lawyers try to make language more precise <trying to be diplomatic>. However, in many cases, these prohibited words have special meanings and consequences. Unless hired to perform an inpection to a specific code or standard, all you are doing is looking at it and making comments. While observations can be important. They may not satisfy the intent of a requried inspection.

--Mike--

RE: Open Question: Professional liability language

darth:

Your insurance co. is trying to prorect you, unless you have a good reason why would not just heed to their advice?
Btw, I do agree with their list of words to avoid. It couldn't harm.

RE: Open Question: Professional liability language

1) I agree

2) Yes, this is a trend in other disciplines.  

3) For example, we are advised never to use the word defect in a report.  Rather, the word should be imperfection or irregularity, or ...

Regards,

Cory

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RE: Open Question: Professional liability language

(OP)
i'm going to play devil's advocate.

Perhaps, we should not be making "observations".  After all, we are competant design professionals. just our mere presence at the site should have prevented a major deviation from our project plans to have occurred on that day. i strongly caution against the use of words such as observe, indicate, and all acts of not taking exception, because this language demonstrates evaluation of general acceptability having been made.

my insurance company "is" trying to protect my insurance company. but, i didn't watch the Clinton impeachment debacle, so i don't know the answer to the question "what is is?" was.



RE: Open Question: Professional liability language

The person to whom your present interlocutor is in the habit of referring by way of the perpendicular pronoun is inclined to express an affirmative opinion to aforementioned viewpoints.

(Translation: "I agree.")

(With apologies to "Yes, Prime Minister".)

RE: Open Question: Professional liability language

darth:

You are on your own. You asked for opinions and you got some. You have the right to disagree as you already are with people or entity trying to protect your interests.

Incidently, what your insurance co. said is very well accepted pratice for years, it is not a new trend.

RE: Open Question: Professional liability language

(OP)
rbulsara,
The question as an open question for general discussion by the eng-tips community. This is one of the less technical help forums.  i follow current legal standards in reporting and contracts, but this is irrelevant to my post.

by "years" do you mean 1, 2, 3, 4, or even 5 decades?

RE: Open Question: Professional liability language

At least two decades that I have been involved with..lawyers have been there for eons.

RE: Open Question: Professional liability language

1.  I agree that today's recommended language will be tomorrow's no-no's.

2.  It is trend primarily in the USA, but I'm sure it's a lesser problem elsewhere.

3. Examples:  I've no examples of prohibited text off the top of my head.

Addendum:
4.  I recall a contrast between Japan & the USA 2 decades ago when Japan's economy and influence was jumping:  There is approximately one attorney for every 50 engineers in Japan; the ration is 1:1 in the USA.
5.  Attorney don't help fixor develop anything, they merely tell you what you shouldn't do,  or worse, tell you everything you could possibly do increases your risk.
6.  I think the joke about a 50 seat bus driving over a cliff with 49 lawyers in it is not a joke, it's the truth.

RE: Open Question: Professional liability language


OK all, let's try another angle, answering the original question:

This is not a trend in Scandinavia, in my opinion.

Maybee prohibiting of words just is a sympthom of a culture very bound up by law and lawyers. Perhaps so much handicapped by this that the ability to create and launch new technical and more effective products and solutions in the US are decling compared to what other nations or technical cultures can do and already are doing?

RE: Open Question: Professional liability language

So, back to the original question, yeah, I agree.  I used to be in product design, and there definitely were words that were never to be used in product literature in case someone misused the product and maimed themselves in the process.

One was "malfunction".  That one was replaced by "loss of function".  "Malfunction" could imply that the product has gone off the reservation and maimed someone while operating out of control.  "Loss of function" implies that the product has simply shut down and become inert.

RE: Open Question: Professional liability language

darthsoilsguy:

1)  You have to know this will change, even when it's not in what appears to be your best interest.

You're working a segment of civil engineering (soils/geotechnical) that was nearly sued to extinction in the 60's and 70's.  Not necessarily from poor work, just poor communication about what it is we do.  School doesn't really teach much about this - if they did, we'd probably lose more potential students thinking about entering the profession.  So as aprofession we educate ourselves in our laboratoy - life.

With regards to the changes, yes they will continue to come.  They will come as long as there is insurance and a perceived pool of money that can be legally accessed (more like extorted in many cases).  The reason has to do with the way the courts decide what something means or is intended to mean.  Expect that to continue to change.  

Insurance used to cover "accidents" or 'mistakes" which today's smart attorney can usually trace to someones negligence or malfeasance; today insurance just gets you in the game to work.  As one colleague noted, there are two kinds of engineers - those who have been sued, and those who have'nt yet been sued.

We like to joke that we no longer writing our reports to our clients, but to their attorneys.  Structural and CE designer's want to strip off the text and get to an executive summary of design parameters - nada mas!  I'm amazed at how often I'll get a call from a client or their designer, and literally have to read portions of a report to someone who simply hasn't and/or doesn't want to take the time to read it!       

So, our response is either learn how to swim with and better than the sharks or go the way of the dinosaurs.

2)  No idea of what is going on internationally.

3)  We present "estimates" of settlement in ranges (e.g. 1 to 2 inches), not absolutes (1.5 inch).


The following "Definition of an Engineer" was reportedly quoted by a San Diego Superior Court judge:

"One who poses as an exacting expert on the strength of being able to turn out with prolific fortitude, strings of incomprehensible formulae calcuated with micrometric precision from extremely vague assumptions which are based on debatable figures acquired from inconclusive and quite imcomplete experiements carried out with instruments of problematic accuracy by persons of doubtgul reliability and of rather dubious mentality."   

Simply, we have to continue to educate ourselves to work profitably in the legal arena.  While this is not necessarily what we thought we might be working on, who better to do this?

RE: Open Question: Professional liability language

A bit OT I know, but since this thread has mentioned juries, read this viewpoint on trial by jury

RE: Open Question: Professional liability language

At one company I worked for, the insurance company made us change "cost estimate" to "opinion of probable cost".  They still work with OPC's to this day...

theCorkster's quoted comment reminds me of my favorite, posted here on my wall:

"The Definition of Engineering:

Engineering is the art of modeling materials we do not wholly understand, into shapes we cannot precisely analyze, so as to withstand forces we cannot properly assess, in such a way that the public has no reason to suspect the extent of our ignorance."
      Dr. D. A. Sykes, from Desktop Engineering Magazine
   



If you "heard" it on the internet, it's guilty until proven innocent. - DCS

RE: Open Question: Professional liability language

mshimko,

Quote:

I recall a contrast between Japan & the USA 2 decades ago when Japan's economy and influence was jumping:  There is approximately one attorney for every 50 engineers in Japan; the ration is 1:1 in the USA.

   I read an explanation for this somewhere.  In the US, you take your law course, you article and inevitably (approximately) you are called to the bar and you become a lawer.  In Japan, a lot of people take law and work for law firms, but are not designated as lawyers.  If you add these in, the ratio gets a lot closer.  

   I tried to look this up on http://www.snopes.com, but my Microsoft Internet Explorer window locked up.

                          JHG

RE: Open Question: Professional liability language

(OP)
i see your unlicensed japanese lawyers, and raise you american parallegals and the secretaries that do the work for the lawyers.

RE: Open Question: Professional liability language

I'm frequently called on to provide my 'opinion of the probable mechanical cost to construct'.

An estimate now means (in lawyer land) a firm price.... what!? How did we lose the meaning of the word 'estimate'? I also provide 'site observation' notes on 'project tours'.

Bah.

RE: Open Question: Professional liability language

Darth,
My two pennies..
Personally, I believe that the litigations will cease once everyone will sue everyone or it will get back in some reasonable shape when counter-lawyers will develop other means of protection against incriminating terms and words. Right now there is still enough money (unprotected from legal harrassment) to "earn" easy money.
Unfortunatelly, I cannot see such trend to develop in other countries, simply because of different culture. While the American or even British would smile and then stab you in the back, the German would tell you in the face his plain opinion (at least you know where you stand). Easter Europe lives in the belive that honest criticism is constructive (they might rob you blind once you finished the project, but that's another topic). The rest of the world need a radio or television to find out the American litigations...
Examples? I'm a lucky distant outsider of the American litigation system (not sure for how long...), so I don't have additional examples to the above posts, sorry.
cheers guys,
gr2vessels

RE: Open Question: Professional liability language

I still think the way to reduce the ridiculous legal nonsense in America should be as follows:
Limit the legal fees & charges to 10% of any judgement - anything above that in subject to 100% federal tax.
Include lawyers in the "Counter Suit" liability so if a company countersues the plantiff, the legal firm who handled it has to pay as well.

Or, my personal favorite: Shoot the lawyer who loses.

It's only a complete day when you Learn something and Teach something!

RE: Open Question: Professional liability language

(OP)
"Or, my personal favorite: Shoot the lawyer who loses"

known in legal circles as playing the "Saddam Defense"

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