There is a saying in negotiations: The one who speaks first and longest loses. Why should this be true? Part of it concerns credibility. If it takes a lot of explaining to present your argument, your complexity suggests that you are hiding something. Another part is simply human nature. The more you say, the more likely you will say something that the other party can legitimately challenge, even if the disagreement does not go to a central part of your argument. The result can be needless confusion and even pettiness.


For almost everyone, it takes practice to write and speak in simple, declarative sentences. Good listening skills also take practice. You need to listen to ensure that what you heard or read in meetings or negotiations is in fact what the other party actually said or wrote. You need to ensure that the other party is also speaking directly.


In this article, I provide real-life examples, all from court decisions, where there was a disconnect between what a party said, as opposed to what it meant, and what a party heard, as opposed to what was actually said. Look at these examples and ask yourself what you would/could have done to change the outcome.


Silence as an affirmation


A subcontractor had continuous problems with the general contractor’s (GC) lack of scheduling and coordination. No one instance of this incompetent project management seemed large enough in impact to justify a notice of claim letter. After a while, the cumulative negative effect took its toll, and, late in the project, the subcontractor submitted a disruption claim.


The subcontractor used daily report forms that contained a box to indicate if there were delays and to describe those delays. The foreman mostly left this box blank. At trial, the GC’s attorney used this “silence” in the daily reports to convince the court that there really were no disruptions.


When a promise is not enforced


A subcontractor had to rent special equipment because of an acceleration ordered by the construction manager (CM). At a meeting with the subcontractor, the CM agreed to pay the extra equipment costs. After the meeting, the CM confirmed its promise by sending an email to the subcontractor stating, “The CM agrees to pay the subcontractor $120,000.” However, the subcontractor did not demand specifics, such as when or how this money would be paid. When the CM failed to pay, the subcontractor sued the CM and GC but lost.


The subcontractor invoiced the general contractor, not the CM, for the promised money. At trial, the GC stated that it had never promised this payment. The court held that the invoice proved the subcontractor did not expect payment directly from the CM.


Another empty promise


A job was running late, and the subcontractor was worried about being assessed liquidated damages (LDs). He met with the architect who told him not to worry and that he will not be charged with LDs. LDs were then charged.


The court held that the architect did not have the authority to change the terms of the owner’s contract and that the subcontractor should have gotten a formal time extension to protect itself.


What do you mean by “precatory”?


An electrical contractor was confronting a variety of costly problems. The drawings contained errors, there was unexpected rework based on oral changes, often the crews were idle while they waited for others to complete work, and the only storage areas available were remote from the site. These and other problems were discussed with the GC, who was recorded in typed job meeting minutes as saying, “I will make sure you do not lose money on this job.” Relying on that statement, the subcontractor went ahead without sending the written notices that the contract required.


As you might surmise, the GC did not fulfill his promise, and the subcontractor sued. The court ruled that the GC’s statement was not a promise at all but was merely “precatory.” Precatory language is an expression of hope or general intentions, not an enforceable promise. The court also ruled that the general contractor’s “promise” had not waived the contract’s change-order procedures.


Being nice has its consequences


Electrical crews were discouraged by tear-out, rework and stop-and-start installations. As a result, the electrical subcontractor was experiencing more than average turnover of personnel. Sloppiness had caused damage to some devices and more than a few routing errors. The electrical subcontractor was losing money because of endless change orders—both small and large—from faulty drawings.


When the electrical subcontractor finally submitted its claim, the cover letter evidenced a desire not to be confrontational but to show a “reasonable” attitude. The letter stated, in part: “Nobody is perfect. In submitting this request for equitable adjustment, we have taken into account mistakes we made.”


At trial, the attorney for the GC devoted a lot of his cross-examination to this letter, getting the witness to list and explain all of these “mistakes,” making the witness uncomfortable, and severely reducing the impact of his testimony about the reasons for the claim.


Getting personal


The inspector on an airport expansion is giving everyone headaches. He checks rebar placement with a 12-inch ruler, uses a level and demands adjustments to cable trays, requires devices to be remounted, orders cable to be rerouted, and refuses to let work go forward until he can inspect it. This over-inspection is adversely affecting productivity, and the subcontractor views many of the “inspections” to be extra work.


The subcontractor writes a series of emails to the inspector. They state the inspector has an “asinine approach,” is engaging in “abusive behavior,” which is an “abuse of discretion,” and he is “ignorant of construction.” The subcontractor is clearly venting. The result of these personal attacks is even more abusive action by the inspector. The subcontractor has made an enemy.


The subcontractor wants to put in a claim for all of the extra costs involved, but he will have to confront a series of very damaging inspection reports that the inspector created after receiving the emails.


Use the above examples to improve your ability to communicate effectively.