Get a techno-attorney

Mark T. Hoske, Editor-in-Chief -- Control Engineering, 5/1/2006

A) Putting too many engineers on one project can complicate things unnecessarily. B) Putting too many attorneys in one room can complicate things unnecessarily. C) Putting engineers and technology-minded attorneys on the same team from project inception can save time, grief, and money.

Jokes are funniest when they're based in truth; there's a bit of humor in A and B. C isn't particularly obvious. While putting attorneys and engineers together can produce levity as well as tension, the resulting savings is no laughing matter.

I'd hate to say there aren't enough attorneys, but there might not be enough attorneys with automation expertise. Many engineers in our industries would say something like, "Our lawyer doesn't really know what we do." That's a problem, according to Mark A. Voigtmann and Shawna Meyer Eikenberry of Baker & Daniels LLP. At a recent WBF meeting, they advocated for a "technology construction" attorney specialty. (Both serve as counsel for Control System Integrators Association; Voigtmann's column can be found regularly in Control Engineering.)

Legal needs of automation and process companies are served by a hodge-podge of expertise—some of it not particularly applicable, they suggest. "Automation law" should contain two parts construction law, one part contract law, one part computer law, and one part intellectual property law. Add a pinch of salt, blend with other contractors, and top with claim sauce, Voigtmann chuckles. Automation law happens up front, during a project, or on the back end, as in: "How do we get out of this mess?" Voigtmann says. To bridge the automation attorney gap, he suggests:

1. When a project involves creating software, find out who has or will have the license, if it's exclusive, and if it's trademark protected. Who's liable if it infringes a patent? Understand the technology and related patents.
2. On technical specifications, focus words on specific design details. Avoid marketing language such as the too-subjective "user-friendly." Performance-based wording ("create 100 widgets/hr") also can create trouble for the engineering firm; performance depends on how technology is applied and used.
3. Warranties can arise even when none were intended. Language answering a request for quotation (RFQ) can imply a warranty in most U.S. states under the Uniform Commercial Code. The UCC also can turn a purchase order into a binding contract, unless a detailed written contract has superseded it.
4. Beware of verbal promises. Sales representatives could bind your company contractually.