"If it is not in writing, it did not happen," a partner with a law firm once told me. Please do not jump to the conclusion that my boss was planning an Enron-style shredding of documents to support the tactic of "plausible deniability," perhaps best known in political circles. Instead, the saying highlights the fact that oral conversations that have no documentation are easily denied or contested. A lack of documentation of a critical decision or event can even indicate to a jury that you are the party making up the facts.
The need for documentation on construction projects would seem to be entirely self-evident. Projects require detailed plans and specifications directing the parties in how a building should be constructed. The parties generally have contracts detailing their rights and responsibilities on the project. Most contractors are at least familiar with the concept that changes in work affecting time or money generally need to be documented with change orders before the work is performed. Invoices are submitted in writing with applications for payment. Waivers of lien rights are signed and transmitted.
Despite this paper construct that parallels the erection of the building itself, I am continually surprised at how often critical decisions, discussions, representations and agreements are never reduced to writing. I can relate numerous first-hand war stories of how painful the failure to document such moments can be to a client.
For example, you are out on the site and the general contractor's foreperson directs you to do a specific task. Although this direction is different from the plans, the foreperson insists that you do it instead per their express oral instructions. This is a situation that needs to be discussed, analyzed and confirmed in writing. I know clients who have followed such oral directions only to be forced to rip out and reconstruct their work when the finished product was noted as deviating from the plans and specifications. Also, it is difficult to predict winning a claim for extra work without documentation of why your work deviated from the plans and specifications.
Even if a conversation is not documented, individual witnesses may be able to testify about decisions, conversations and events. The real issue is that a failure of documentation creates an opening for your opponent to contest a fact that would otherwise be locked in place with documents. In construction litigation cases, there is always enough room for disagreement and posturing based on letters, plans and specifications. You should try to avoid giving your opponent a free shot at attacking your position with conflicting witnesses when it can be avoided with a simple letter or memorandum.
Rule No. 2: Documents are Power
"Documents are power," said a senior partner with my first law firm. Being a student of history, I already appreciated that analyzing a case required digging through the historical documentation and creating a chain of facts and evidence from the raw source material. The phrase emphasizes the critical impact documents can have on a case for good or ill.
Information contained in documents is usually the lifeblood of most lawsuits. This is particularly true in construction litigation, where cases tend to be unusually document-intensive. While there are piles of paper, every case also tends to focus on a few critical documents as the lynchpin of success.
You need to understand this fact when you are performing a job. Hopefully, you will follow Rule No. 1 and make sure that critical decisions and communications on the job are documented in writing. Once you are over the hurdle of producing documentation of events, you need to ensure that written communication is accurate and maintains a positive and effective tone.
The best policy is to keep things simple, clear and concise. Simply state the facts in your memos or letters rather than engaging in editorial commentary that may confuse the issue. Maintaining a purely factual tone tends to make later readers view the documents with less skepticism. When a document is clearly aggressive and partisan, it is easier to discount the factual position contained in the document.
The tone and personality of the writer can have a great influence on a jury's perception of events. A critical issue in one of my cases was that a particular subcontractor was belligerent and difficult to deal with and that this behavior lead to project delays. In fact, this subcontractor's president had a penchant for writing incredibly aggressive, belligerent and even rude letters. One of his favorite writing techniques was to CAPITALIZE ENTIRE PARAGRAPHS TO EMPHASIZE HIS POINT AND INCLUDE MULTIPLE EXCLAMATION POINTS FOR EVERY SENTENCE!!! Simply seeing this sentence gives you the sense that this writing style depicts yelling rather than talking.
The president used this style of writing on a consistent basis. As an added point of note, in person he tended to speak as aggressively as he wrote his letters. Regardless of the validity of the position he took, you can see where a skilled lawyer can easily make such a person appear combative, argumentative and obstructive to the progress of a job. Tone and appearance are important to a jury.
The final point to glean from this discussion is to always assume that your written documents may eventually be blown up and dissected in front of a jury. If you are angry or upset when writing, make sure you let the letter sit on your desk for a bit and edit it before it goes out. Also, try to be careful and clear in your selection of language in addressing a topic. It can also be a great help to have your lawyer review your correspondence if an issue is particularly important or if you have liability concerns relating to an issue.
It is always best to make sure that you properly and timely document your position during the project. It is far better to have a letter that you can show to a judge or jury supporting your position than to be stuck with competing witnesses at trial. Be clear, direct and concise in your documentation. Assume that your documents may eventually be the proof at trial, and dictate the tone and attitude of your written documentation accordingly.
Return to Table of Contents