THE LITIGATION/LIABILITY CRISIS: WHAT ARE WE GOING TO DO ABOUT IT? (A CALL TO ARMS)

At the very time when owners, architects, general contractors, and subcontractors are striving to work together more closely in the delivery process, they find themselves overwhelmed by a force that makes them adversaries--litigation. What was not anticipated 20 years ago was the gradual and increasing involvement of an additional participant on the project delivery team--the attorney. And the increasing involvement of this "new participant" has begun to counter the positive forces of team building. This litigation/liability crisis and the unpredictable nature of the risk associated with operating a business today is bringing about the demise of the small business. The blame for this crisis must be placed on the project delivery industry itself. At the heart of the problem is the view that no one really needs to take responsibility for their own actions. This attitude must be changed. Together owners, architects, engineers, builders, insurers, and responsible members of the legal profession can begin the process of creating a business environment that will again encourage teamwork, foster creativity, and deliver a final product that is responsive to the public need. The most expedient solution is found in English law. In Britain if someone brings a court action as plaintiff he too runs a risk, because if he does not prevail he must pay the defendants legal fees and other costs as well as his own. If such a principle were placed in American tort law the effects would be immediate and obvious: the number of cases without merit would drop; all insurance companies would fight cases with merit to win a judgment; liability insurance premiums would drop; reasonable and fair attorneys' fees would be maintained; and use of the law for nuisance or extortion or both would stop. If the project delivery industry can coalesce its member associations into an effective voice, it will find allies in almost every business and professional society in America. Together the owner, lender, and real estate, design, and construction industries can indeed effect change.