“The side with the best paper trail usually wins.” This is a concept that my general contractor father tried to teach me when I was younger, and one that I’ve learned the hard way myself through direct experience.
In my work as a forensic consultant on behalf of many different parties in all manner of disputes involving the built environment, I’ve come to learn that representing the party with the better documentation is always preferable.
The more tangible evidence to corroborate the story being told by a party, the easier it is for a trier of fact to discern fact from fiction. Perhaps conversely, the pain caused in trying to make sense of a poorly documented claim leads to an unconscious bias against that party?
It also means that the costs to defend or support a claim are reduced because attorneys, experts and their staff require less effort to quickly isolate key evidence.
What’s the Point?
For the reasonably prudent design, construction or other firm working in the building industry, the better you document your work on a given project, the lower your liability exposure in the event of a dispute.
Ted Bumgardner, founder of Xpera Group, was part of a panel of speakers for a webinar put on by Engineering News Record called: “How Better Site Data Protects You, Your Project and Your Company.” Over at the Xpera website, we put together some of the key takeaways from the talk. Below are some excerpts:
On Construction Documentation and the Litigation Process
The best evidence is documentation that was created at the time the work was done. Contemporaneous documentation like daily reports and meeting minutes are more likely to be admitted as evidence and more likely to be persuasive to juries, judges and arbitrators. A trier of fact tends to look upon party witnesses as being biased (in trial, people will say what is in their best interest), while contemporaneous documentation tends to be viewed as more neutral and reliable. These documents can also be used to impeach unreliable witnesses.
On Documentation Management
Good document management practices are crucial in proving claims. Ted Bumgardner advises his contractor clients to prepare every file like it is going to end up in court someday. The better job you do documenting the project and organizing files in real time, the better your chances for not having them tested (or the better positioned you’ll be to negotiate a beneficial outcome if they do). It will cost you far less to keep your documents current and organized in real time than it will to hire attorneys and experts to sort it out for you after the fact.
Read the full article to learn more about what goes into creating and managing a digital paper trail to CYA and reduce exposure in a potential dispute.
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