Good documentation does not happen by accident. Left to our own devices, many of us probably think we have better things to do than write down what the weather was that day, fill out the shop drawing log, or even update the CPM schedule. After all, there is a project to be built. However, it only takes one time in litigation to change that mindset—additionally, the reality of a dispute resolution form is who is right and who is wrong may not determine who wins the case. It can come down to who can present the best documents to support the case.
Documentation is required at every project level. Here is a typical claim scenario: An issue arises on a project, and a couple of meetings take place with positions laid out. Resolution does not occur and tempers may flare. So what happens next? Usually, a letter-writing campaign ensues. The architect and engineers and the contractor start carefully crafting correspondence, with every word painstakingly reviewed (sometimes by counsel). These documents are a vital part of the project record, especially during litigation. However, consider for a moment the project participants who wrote them and for what purpose. Then ask, will claims notice and response letters be taken as sole-source gospel or as an accurate portrayal of the events of the project? Or will they be viewed as each side posturing in anticipation of litigation?
In litigation, every document could be read—not only the letters, but also the meeting minutes, foreman’s reports, inspection reports, shop drawing logs, equipment logs, CPM schedule reports, delay notices, change orders, monthly billings, payrolls, photos, telephone calls, insurance certificates, daily reports, and e-mails. A review of meeting minutes, e-mails, and daily reports prior to dispute reveals how the parties were interacting with each other before tensions rose.
Regular project documentation, such as meeting minutes and daily reports also generally contain the thoughts and mental impressions of the parties as they were coming to their minds. The thoughts of the inspectors and foreman in the field may play just as important a role in a dispute as the carefully crafted letters by the project manager. Consequently, every form of project documentation, from high-level letters to daily updates, should be drafted by project participants trained to create factually correct and professional reports.
Improving documentation
Good documentation practice is not rocket science. However, if you ever get into litigation, you will understand it importance. Here are some practical things to consider when striving to improve your documentation.
Weigh the risks of poor documentation
In my career, I’ve read thousands of daily reports, meeting minutes, letters, and CPM schedule documentation—some have been pretty comical. Also, I’ve seen some pretty creative analogies and insults hurled. These types of documents may be fun to read, and may even make the authors feel better because they’ve gotten something off their mind. However, it is important to remember every project document may be read by someone. In other words, project documentation should provide facts and not opinions about someone’s mother.
Timing is everything
The old cliché about timing is true in the case of project documentation. It is important project participants be timely with all forms of correspondence. One must read the contract and abide by what it says regarding issuance of minutes, RFIs, shop drawing approvals, notices of claims, and associated responses.
Keep e-mails professional
For some reason, people will put something in an e-mail they would never say to someone’s face or put in a letter. The truth is you should be just as careful with what you say in e-mail as you would in any other type of documentation. It is, after all, just as admissible in court, and has a way of showing up in the strangest places. The landscape of litigation and electronic document discovery is constantly changing.
Understand what you get
We all can’t know everything. Construction projects, and especially their disputed issues, are dynamic and can be complicated. This author has seen plenty of cases where byzantine CPM schedules were submitted by a contractor and the owner did not review and comment simply because there was no understanding of what was submitted. This obviously creates all kinds of problems during the project and all the way through litigation.
Conclusion
Hopefully, these two articles have provided a taste of the importance of good documentation. The good thing about what has been explored in terms of documentation practices is that they are relatively easy to improve. It just requires self-discipline.
Norman F. Jacobs Jr., CSI, CPE, is a principal at Jacobs Consultant Services, which offers cost management, schedule control assistance, project management, and claims preparation/negotiation. He has also served as an arbitrator, owner’s representative, and expert witness in arbitration and court involving multi-million dollar projects. Before creating his current organization, Jacobs provided design-build, construction management, and general contracting for developers, government agencies, and private clients for more than 30 years. He has served as the president of the Construction Specifications Institute (CSI) Richmond Chapter, chaired the Virginia Associated General Contractors (AGC) Documents Committee, and been a long-time member of organizations including the Project Management Institute (PMI) and the American Society of Professional Estimators (ASPE). He can be contacted via e-mail at jcscpm@aol.com.
