Record Keeping Is Crucial To Litigation Success

When it comes to construction litigation, courts often heavily rely on documentary evidence rather than uncorroborated oral testimony to determine the credibility of witnesses.  It is very hard to convince a judge that the judge should consider testimony of a witness who was involved in a construction project several years prior rather than a contemporaneous record which was created during the project.  All too often a client will sue or be sued several years after the project was completed and/or after the dispute arose which is the subject of the litigation.  Memories do not improve over time; they get worse.  However, a document created during the project does not change.

In order to maintain a strong litigation position, a company must have a protocol for record creation and record keeping.  In addition, many times a project manager or site superintendent is no longer with the company when a lawsuit is commenced.  As a result, the company will not know where the relevant documents are located or even if they were ever created.  That is why companies need to have a protocol for record creation and record keeping making sure the documents needed to prove their case are available years after the project is completed.  With that said, each company should prepare a written “bible” for their project managers and site superintendents demonstrating when and how documents should be prepared when an issue arises and how to store those documents so that they are readily accessible when needed.

Creating discipline within the ranks of the project personnel will often be the key in winning a litigation.  In addition to the “bible”, presentations should be given to field personnel and project managers showing them when and how to respond to communications when a dispute arises.  For example, if your project manager responds to an email by calling the other party on the telephone or by text, that response never happened.  All replies should be by letter or email, so the record is maintained.  The old axiom is true; if you did not respond in writing, you never responded.