Three Basic Rules of Documentation

Documentation plays a key role in the design and construction process. Here are three rules for doing it right.

By Timothy R. Hughes

As a construction attorney, I am continually faced with cases where documents are the most critical element of litigation. Construction projects are complicated undertakings involving numerous parties. The responsibilities of the parties are set forth in complex, interlocking contractual agreements. The progress of construction is marked, or sometimes fraught, by extensive documentation.

Despite these basic truisms, I am also continually confronted, sadly with clients, or happily with opponents, who fail to follow some basic principles relating to documents that dramatically impact a case. I have developed three basic documentation rules that will hopefully assist you to document your position and may influence the course of litigation in the event you have a project in litigation.

1. Keep it Simple ("The KISS Principle")
   

   I learned the KISS principle in high school: keep it simple, stupid. This is perhaps the most basic rule of writing and documentation on construction projects. It is also perhaps the rule most egregiously and continuously violated.

   You must keep in mind that juries deciding cases are generally uniformed regarding construction matters. When writing a document on a construction related issue, try and picture the document blown up in front of a jury in an effort to persuade them that your position was reasonable. When seen in that light, the need for simplicity becomes very clear. The same rule holds true even when a case is being decided by a judge or a supposedly educated arbitrator. Brevity and clarity are the soul not only of wit, but also of persuasion.

2. Keep it Factual
   

   When faced with a frustrating situation, there is always the temptation to express oneself aggressively. I often face the same urges in my job. Resist the temptation.

   It is always better to take a deep breath and avoid emotional hyperbole. Maintaining a strict focus on facts rather than perceived intent or emotion makes you appear reasonable in writing. If you can, you may want to stick the letter, e-mail or memorandum into your desk until the next day to ensure it is calm.

   As a lawyer, I particularly enjoy cross-examining "hot heads" whose screaming comes across in their letters. On particular example comes to mind where a party WROTE ENTIRE PARAGRAPHS IN CAPITALS AND USED EXTREMELY STRONG AND THREATENING LANGUAGE, INCLUDING PLENTY OF EXCLAMATION POINTS!!!!

   Our case centered on how this particular party was unreasonable during the project and the tone of their correspondence went a long way towards proving our point.

   On one additional point, be careful with electronic mail. The deceptive ease of transmission and informality of e-mail lend itself to potentially damning admissions or statements. People tend to say things in e-mails they would never say in person, on the phone, or in a letter. Do not let that person be you.

3. Keep it Coming
   

   You must always maintain a steady flow of documenting your position throughout the job. Like in tennis, you must always keep the ball on the other side of the net. If the ball is hit to you and you do not hit it back, you lose.

   I have faced many cases where clients are uncomfortable with injecting disruption into a relationship through documenting their position. You need to get over this hurdle. If you adhere to the first two rules above, reasonable parties should not take issue with your ensuring that everyone clearly understands your position. If a party takes issue with that policy, you were likely headed for trouble in any event and it is always better to know sooner rather than later.

Conclusion

Documentation is a critical part of successful construction projects. Similarly, proper and effective documentation is fundamental to protecting your position in litigation and winning your case. If you follow the three basic rules set forth above, your chances of either a successful project or a successful piece of litigation will improve dramatically.

Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com, or by phone at (703) 671-8200.