Despite being in the industry for years, many architects and engineers are still surprised at the complexity of the litigation process. In this article, we take a look at the anatomy of an AEC lawsuit, including the party roles, causes of action, stages and timelines of a typical legal claim, plus what to do to protect yourself.

1. Party Roles

A typical legal claim in the AEC industry often begins with an assessment of the roles of the parties involved. This “who did what” phase is important, because AEC cases hinge on the parties’ relationship, although there are exceptions.

Beyond a relationship between the parties, claims typically rest on a duty owned by one party to another, usually a design professional’s duty owed to a client. But other types of claims are also possible and common, such as where an architect sues a general contractor or vice versa.

The role you play in the project impacts how you may be brought into any resulting litigation:

Owners and Developers

The owner or developer of the project is usually the client. For smaller projects, the owner or developer may be the same person or business entity. However, for larger projects, separate owners and developers are common. These claims are more complex as liability in a claim may pass through the developer.

Architects

The architect plays a major role in most design projects, but the architect’s specific role, duties and liability can vary.

In projects where the owner or developer hires a lead architect, that architect will then hire sub-consultant professionals, such as engineers with civil, structural, mechanical, electrical and plumbing expertise. If a claim arises anywhere in the project, the owner would bring a lawsuit against the architect, even if another involved party was likely the source of the problem. The architect would then be responsible for bringing a lawsuit against any of the engineers, contractors or other professionals that the architect had hired.

In design-build projects where the architect is hired by a general contractor, the owner or developer would bring a suit against the general contractor and the general contractor would then bring a suit against the architect or any other professionals they had hired.

Engineers

The engineer’s role in litigation is similar to the architect’s role. Whoever hired the engineer is generally the party who must bring a lawsuit against the engineer for a project defect.

When a project has a lead architect, this is the party who usually brings a suit against the engineer. However, even in some projects with a lead architect, the owner or developer may hire an engineering specialist separately. In design-build projects, a general contractor may be the one to hire the engineers.

General Contractors

The general contractor role is typically hired directly by the owner or developer, whether a project has a lead architect, separately hired engineer or design-build structure. However, the contractor also plays an important middle role, being the one to hire subcontractors in framing, plumbing, HVAC and specialties.

When problems arise, a general contractor usually is brought into the lawsuit by the owner or developer and then is responsible for filing any third-party claims against the architects, engineers or subcontractors they had hired. If there are second-tier subcontractors involved who were hired by these first-tier subcontractors, these subcontractors would be responsible for filing claims against those parties.

Other Professionals

While this is the general structure of the party roles in an AEC claim, there are plenty of exceptions. For instance, some projects involve delegated design, where certain aspects of a project’s design are under the responsibility of a subcontractor who hires and oversees a specialty designer. A simple example might be a swimming pool, where a general contractor hires a pool subcontractor, who then hires a designer or engineer specializing in swimming pools. These unusual structures can lead to claims where a party filing the lawsuit against another professional isn’t typically the one to file such claims.

2. Causes of Action

There are a number of ways architecture, engineering and construction professionals can be drawn into a lawsuit. These involve first-party claims as well as third-party claims, and can involve common law or statutes for a particular jurisdiction. Some types of lawsuits are more common and include:

Negligence

Professional negligence is one of the most common causes of action in litigation against architects, engineers and other design professionals. These claims are typically complex and can be difficult to defend against.

First, a court must decide whether a duty of care exists and what duty of care exists — that is, whether a party involved owed a duty to another party, and whether a typical design professional exercising an ordinary level of caution could be expected to do or not do what is being claimed as negligence under the same or similar circumstances. Since a professional has more education and knowledge in a field than a lay person, the professional will often be held to a higher duty of care.

The court then looks for a breach of that duty, such as a violation of the building codes, deficiencies in plans or documentation or defective construction of structures or installation of systems. An AEC professional may be negligent if he or she doesn’t apply his or her expertise in building codes, plans or documentation, and design and construction of structures or systems to a project that a similarly situated AEC professional would know would cause an issue. That harm occurred specifically due to the breach must then be proven or disproven with facts and evidence.

Breach of Contract

Breach of contract is a separate cause of action that is also common. Here, a client must prove the existence of a valid contract they followed but that a designer breached, resulting in harm. However, that’s not all there is to this type of claim.

Many contracts incorporate a number of pre-suit requirements, such as providing proper notice, ordering expert reports, allowing the other party an opportunity to cure the defect, and participating in pre-suit mediation or arbitration. Lawsuits can be dismissed if these conditions aren’t satisfied.

However, architects and engineers must also proceed carefully. It’s even possible in some states to waive a right to arbitration with the wrong move. Limitations of liability, damages waivers and other contract elements may also come into play.

Breach of Warranty

Warranty claims are another cause of action found in the design industry. Warranties claims can involve express warranties, where a specific and intentional statement or promise is given that becomes a basis for the transaction. Though often written, express warranties can also be created verbally or through the display of advertising, models or samples. Other lawsuits may claim a warranty is implied.

A warranty claim requires legal professionals to determine whether an express warranty was made to the client and whether and how the claim addresses that warranty. Lawyers also look at whether and how a design professional used disclaimers against any express warranties.

In the absence of an express warranty, lawyers will then dig into the complexity of the relevant implied warranty statutes and case law. Design projects may involve implied warranties of habitability, fitness for purpose, merchantability or workmanship. However, it really depends on the state. Some states allow implied warranties to be disclaimed, while some do not, and others specifically do not extend implied warranties to the work of design professionals.

Other Causes of Action

Architects, engineers and other design professionals may also face lawsuits by other means. These could include:

Contribution and Indemnity Lawsuits – In these claims, one party may sue another party for reimbursement of a portion of or all of the damages that the first party was forced to pay. However, this type of potential litigation comes with many complexities in the field of design.

State Deceptive Trade Practices Acts (DPTA) Claims – A DPTA claim relies on specific laws many states have adopted to protect consumers from unfair trade practices. While these claims are complex, they can be attractive due to the recoverable damages for violations, including for implied warranty breaches.

Fraud and Fraudulent Misrepresentation Lawsuits – Fraud claims are less common, but can happen if certain materially false representations are made and lead to client harm. Design drawings are usually protected, but claims over experience, property condition and even accounting may not be.

3. Dispute Stages and Timelines

A lot of the legal work involved in an AEC industry lawsuit happens long before any trial in a courtroom may take place. In fact, many disputes never make it to trial — though even these disputes can be stressful, time-consuming and costly.

Pre-Litigation Negotiations

Sometimes, a conflict between a client and a design professional can be resolved before an actual lawsuit is filed — though lawyers are still usually hired on both sides. This is known as pre-suit or pre-litigation negotiations. Depending on the issues at hand, this process may unfold over several weeks to months.

The aggrieved party will hire an attorney to send a demand letter. This document notifies the other party of a potential lawsuit and its claims and offers an opportunity to resolve the dispute before the suit is formally filed with a court after the given deadline. A mediator may be hired by the parties and their lawyers to aid in these negotiations and reach a resolution.

If pre-suit negotiations don’t resolve a design dispute and it does end up going all the way through the legal process, it will progress through five general civil litigation stages:

• Pleadings
• Discovery
• Motions
• Trial
• Appeals

Often, parties voluntarily decide to settle the dispute and halt the process before going all the way through this process. This choice can save both time and money in a complex case. Arbitration is also sometimes utilized as an alternative to a more costly and lengthy trial process.

Pleadings

The pleadings stage of a lawsuit begins with the aggrieved (suing) party (the plaintiff), filing a complaint with the trial court. The complaint outlines the parties involved, an allegation of actions and events and who bears responsibility for them, a list of claimed wrongdoings and a formal demand for a judge or jury to decide the case’s outcome.

In response to the complaint, the court issues a summons to the other party (the defendant). The summons serves as notification of the lawsuit against them and includes the pertinent case details, court, judge, plaintiff attorney information and a copy of the complaint letter.

After being served with a summons, the defendant and their attorney are allowed a set amount of time to file a written response with the court. This response provides the defendant an opportunity to give their side of the dispute and may include counterclaims against the plaintiff. The court uses the complaint and the answer to define the issues to decide.

With the complaint and answer in hand, the court will issue a schedule for the case (a scheduling order). It outlines the next steps and sets a timeline for the lawsuit. In simple matters, this process may go relatively quickly, with the entire pleading phase taking several weeks.

However, in an AEC industry lawsuit, even this first stage of litigation can be tricky. Seasoned attorneys will carefully strategize the order and timing of hiring experts, submitting written reports, deposing witnesses and other next steps in an effort to gain a favorable legal position. AEC pleadings in these cases can stretch on for months before moving on to discovery.

Discovery

The discovery stage of a lawsuit is all about gathering information. It is designed to give both sides an opportunity to learn as much as they can about the case’s facts and issues. Typical case discovery procedures can include:

• Interrogatories – Lists of questions with requests for the parties written responses.
• Requests to Produce – Requests for relevant documents and physical evidence.
• Subpoenas – Requests of information from third parties that may be relevant to the case.
• Depositions – Recorded non-court interviews under oath of the parties and witnesses.

Discovery is usually the longest part of the AEC lawsuit. Courts typically allow around six months for it. But with design industry disputes, discovery can take even longer. Standard document processes, including gathering, organizing, supplying and researching information, may take months more than normal. Numerous individuals may need to be deposed in depositions and each of these interviews (depositions) could take several days to conduct. Additional time would then be spent reviewing and analyzing the information learned. Lastly, information learned at any stage could change the trajectory of a party’s legal strategy for winning the case and have a huge impact on their next steps.

Motions

After discovery, an AEC industry lawsuit moves into a pre-trial stage. Often, this is called the motions stage of litigation due to the volume of motions typically filed with the court during this period, although some motions can occur as early as the pleading stage.

A motion is a formal request to the court by one of the parties for a ruling, order or judgement. Due to the time motions take to prepare and the freedom of courts when issuing a ruling, this phase of a case also often takes several months.

In an AEC lawsuit, pre-trial motions are used to narrow down the issues to be decided by a trial or potentially stop the process and avoid a trial altogether. Motions can be used to answer specific questions related to the law or the facts of the case. They can also address procedural questions.

In some cases, one party may attempt to win the case during the pre-trial stage based on undisputed facts or testimony revealed in the course of the discovery process. This is done by asking the judge for a motion to dismiss or a motion for summary judgement. If successful, such a motion can stop the process and avoid the cost of a trial.

Motions in design dispute lawsuits are often strategic. A party may ask the judge to exclude certain expert testimony or evidence that could benefit the opposing party’s position. In order to file such motions successfully, a party’s attorney must have sufficient time to review discovery materials and thoroughly explain their legal reasoning in their motions.

While trial preparations are serious and it may seem like a trial is inevitable at this point, many cases do resolve around this stage in the process. Some may be terminated through a motion to the court, but many are resolved in negotiations between the parties ending in a settlement.

Trial

If pre-trial motions or negotiations fail to bring a lawsuit to a close, it will move on to the next stage of litigation: the trial. Many books, movies and television shows dramatize the trial phase for effect, but most trials are mundane and orderly affairs. A great deal of communication between the judge and attorneys for each party will have already taken place beforehand, so that the focus can be on each side presenting their best argument for their client on the remaining questions.

However, the timeline for civil trials can be less predictable than for other stages of litigation. Some trials last a few days, others can last weeks when the case is more complex, such as an AEC industry lawsuit. The number of witnesses and the volume of evidence presented often impacts the length of a trial. Scheduling conflicts, court availability or other unexpected issues arising during the trial can also prolong the expected length of the proceedings.

Appeals

At the conclusion of a trial, the losing party has an option to file an appeal with the court of appeals. The court of appeals reviews the trial court, and (if needed), the supreme court reviews the court of appeals. An appeal is a challenge of a previous legal determination by a lower court. Appeals are directed at a higher court, usually the state appellate court.

It’s important to understand that an appeal is not a request for a “do-over.” Instead, most appeals focus on reviewing a trial court’s case for legal errors only. Only very rarely would an appellate court review factual evidence or consider overriding a judge’s or jury’s findings in a case.

If an appellate court reviews a case, it will issue a decision (an opinion). An opinion can affirm the trial court’s decision if no errors were found in the trial court proceeding. If a legally meaningful or substantial error was found, the appellate court can reverse the trial court’s decision or send the case back to the lower court for a new trial with instructions about avoiding the error.

Because of their technical nature, appeals can be lengthy — they can extend the legal process by a year or more. However, design dispute lawsuit appeals can be even longer. In one case involving an architect giving free advice to a neighbor on their landscaping, the litigation continued for almost a decade.

Protecting Against an AEC Lawsuit

With the complexity, length of time, stress and cost involved, AEC lawsuits are best avoided. Your first line of defense is to practice good risk management in the course of business, such as:

• Setting realistic expectations with clients and stakeholders on outcomes, timelines and budgets.
• Understanding common AEC contract risks, such as broad indemnification clauses and contract language.
• Practicing good communication, with timely responses, returning calls and clear instructions.
• Letting clients own important decisions, empowering the project owner to make decisions with your advice on risks and benefits.
• Documenting professional advice and decisions in writing, including your advice against any unadvisable choices.
• Avoiding the appearance of conflicts of interest in favor of yourself or another party or competing client.
• Staying clear of problem clients, such as those with unrealistic expectations, unchecked emotions or unethical or unprofessional conduct.
• Avoiding filing suit against clients, when possible, since a counter-claim is a common response.
• Handling any complaints you do receive proactively, staying aware of issues and providing a way forward.

However, not all lawsuits can be avoided. It’s in these instances that the right professional liability insurance makes all the difference. Lockton Affinity Architect + Engineer coverage is tailored to the unique risks of the architecture, engineer and construction industry. We also offer competitive coverage and prices, best-in-class customer service, pre-claim assistance and more.

Get started today. Request your price indication or call (888) 425-7011 to speak to one of our insurance experts.

For further reading, see:

Caffey, Angela D. and Beam, Heather M. (November 10, 2022). Design and Construction Defect Claims: Overview and Defense Strategies. Thompson Coe. https://www.thompsoncoe.com/resources/publications/design-and-construction-defect-claims-overview-and-defense-strategies/

Chiariello, Dominic and Chiariello II, Gerald. (September 26, 2024). Ask an Attorney: How Long Does a Civil Litigation Case Typically Take? Chiariello & Chiariello. https://www.chiariello.com/blogs/4666/how-long-does-a-civil-litigation-case-take

Smith, Rustin (n.d.). Stages of Civil Litigation. Stewart, Melvin & Frost. https://smf-law.com/legal-briefs/stages-of-civil-litigation/

Wiese, Michael D. (March 13, 2023). Civil Lawsuits: The 8-Step Process From Start to Finish. Smith, Haughey, Rice & Roegge. https://shrr.com/news_events/civil-lawsuits-8-step-process/