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CHAD CLINEHENS , from page 5

MORE ADVICE, IN 140 CHARACTERS OR LESS... Chad Clinehens and Mark Zweig lead Zwieg Group’s #BecomingABetterSeller seminar. Insights from the recent one-day event in Madison, Wisconsin, include: ❚ ❚ MZ: Don’t talk over clients’ heads and use unfamiliar acronyms. ❚ ❚ CC: You must share the promises from your presentation with your project team. ❚ ❚ CC: Every “no” takes you to a “yes.” Stay calm and cool and keep trying. ❚ ❚ MZ: Effective sellers focus on benefits to the client, not features of the firm. Marketing must be designed around clients’ needs and all of the firm’s operations must align with this concept. ❚ ❚ CC: Your competitors have a strength that’s your weakness, and you have strengths that are their weaknesses. Your job in a proposal is to exploit your competitors’ weaknesses and showcase your strengths. STAY CONNECTED! Zweig Group: @ZweigGroup TZL: @ZweigLetter Executive Search: @ZGRecruiting

achieve critical growth into new areas, both geographic and service. If you had 30 percent growth over the past year, have you added 30 percent more marketing resources? I doubt it. Scale up your marketing department with the rest of the firm. If you have an ambitious growth and/or diversification plan, you might need to add even more market- ing resources proportionate to the rest of your business. As this historic market surge continues in our industry, I am seeing many departments and firms going into auto-pilot mode. The reason for this is our focus is shifting to completing the incredible volume of work that firms have right now. This stretches all resources and commands an “all hands on deck” atmosphere. Meanwhile, we are not spending the time necessary to look ahead and plan for that upcoming weather system that could cause us turbulence. Even worse, there might be a mountain ahead that we could crash into. Not putting critical business functions into auto- pilot mode while we all work to get this work done is difficult to resist. It’s more important than ever to do it now, while you have the financial resources to invest. Once a downturn comes onto the horizon, it is too late. Take the controls now and change your altitude to a nice climb, taking your firm to new heights. Be looking far ahead now and steer your plane to avoid the things coming that will certainly cause your firm turbulence or even casualties. CHAD CLINEHENS is Zweig Group’s executive vice president. Contact him at cec@zweiggroup.com.

McKee asks: “Clients say that they have never had to en- force the indemnity language, but then why is the clause in the agreement?” “We believe that some lawyers feel they need to insert ‘de- fend’ early in the indemnity clause to make sure that it gets included and don’t necessarily understand – nor want to – that the professional liability insurance is based on the neg- ligence of the architect,” he says. GLMV has considered increasing its professional liability insurance limits, but, in respect to a defense provision, the amount of its limits is not really relevant because no profes- sional liability insurer covers a contractual provision that extends liability beyond those damages attributable to neg- ligence. However, McKee explains that the firm would still need to weigh the cost of the additional insurance against the size and types of projects to pursue, and that doesn’t always work because some clients are looking for “unlimited liabil- ity” insurance, which cannot be purchased. “As a practical matter, we don’t think most firms are willing to accept unlimited liability on projects,” he says. Where does your firm stand on the issue of unreasonable indemnity clauses and more specificity, regarding the use of “defend” in client-drafted indemnities? “I know we’re not alone. We’ve been experiencing recurring instances – from different parties – regarding contractual requirements that are unacceptable and uninsurable.”

RISK & LIABILITY , from page 7

design-bid-build clients and the firm is starting to see the change on design-build projects, too. “We don’t usually hear the same concerns from the contrac- tor on D-B because their contractual liability coverage pro- vided under a commercial general liability policy is broad and typically covers liability of the client and provides cov- erage for defense,” he says. McKee says that for GLMV to agree to “defend” on behalf of the client implies that it will retain defense counsel and expert witnesses on their behalf, something he doubts the client would delegate to the architectural firm, or any other party for that matter. It also bears noting that the same law firm is unlikely to be able to defend both the architectural firm and the client because of potential conflicts. “Accordingly, for pragmatic reasons unrelated to insurance, it seems to make sense for both parties to defend them- selves, with the understanding that the architectural firm will indemnify the client for all loss, damage, cost or ex- pense – including any reasonable attorneys’ fees and other costs of defense – to the extent caused by the architectural firm’s negligence in the performance of services pursuant to the agreement, after they have been found negligent,” McK- ee says. “Also, under the law, our firm – any firm – already has a professional obligation to perform services in a non- negligent manner, and if the firm fails to do so, the client has recourse in tort.” So, whether to accept work under these onerous provisions becomes a business decision that firms must make; mostly, it depends on howmuch a firmwants the work or a relation- ship with a particular client. Firms struggle with these deci- sions, and, if they go ahead with that client, such decisions aren’t taken lightly.

© Copyright 2015. Zweig Group. All rights reserved.

THE ZWEIG LETTER JULY 13, 2015, ISSUE 1111

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