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Document To Litigate: ‘If it isn’t written, it didn’t happen’

By Matt Firestone | Sep 11, 2023
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My good friend and colleague Jim Johannemann has a saying that has saved me multiple times on projects: “Document to litigate. If it isn’t written, it didn’t happen.” 

My good friend and colleague Jim Johannemann has a saying that has saved me multiple times on projects: “Document to litigate. If it isn’t written, it didn’t happen.” Of course, we all hope we don’t get to litigation on any project, but we better be prepared in case we do. Even if we never have a claim on a project, having documentation can help ease disagreements when changes happen, or if there is a lapse in memory of an agreement. Simply documenting existing or as-built conditions creates a record of what may have or didn’t happen on a project. 

Many of us are involved in multiple projects at any given time. We are pulled in different directions and seldom have a full day without interruptions or a fire that needs to be put out. Even if you don’t plan to sue anybody anytime soon, having good documentation can save you time and headaches in the future.

Write it down

The documentation you create doesn’t have to be a 1,000-page novel. Record the facts and information in enough detail that no holes or gray areas are left open for interpretation. One of the biggest mistakes when working with contractors is that they remember their side of a phone call, but don’t have it documented to back it up. 

Whether it’s a vendor agreeing to cover the freight on an order or the GC agreeing to pay for overtime, having the conversation documented can be a lifesaver. I know it takes more time, and you’re probably already looking at 700 other things on your to-do list, but I can speak from experience. Taking the two minutes now to follow up with an email can save you hours and dollars in the future. 

The follow-up email doesn’t have to be elaborate and can be a bullet point summary of the conversation. The important part is to include all the details. 

For example, consider when a vendor offers to cover the freight. In your email, don’t say, “Hey, Joe, thanks for covering the freight on our order.” Be specific, “Hey Joe, I wanted to follow up on our phone conversation from earlier today. Please confirm that you will cover the freight costs for quote XYZ123 for the new office project.” Now, six months down the road, when Joe forgets about your conversation and includes freight on the invoice, you can nicely remind him by resending him the email correspondence you have that he is covering the freight costs.

Take photos

Documentation doesn’t always have to be in written form. Taking photos is another great way for recording existing site or project conditions. This can help with external communications (customers, GCs, engineers, etc.) and internal communications (estimators, PMs, foremen, etc.). 

From an internal standpoint, photos taken during a job walk or prebid meeting can communicate potential obstacles or challenges on a project from the office to the field. Photos sent from the field to the office may save the project manager from having to make a trip to the job site. Most smartphones have the built-in capability to mark up or comment on photos without having to purchase an additional app. 

Having the mindset of “document to litigate” isn’t only for large contractors on big projects. Smaller electrical contractors that only do residential work can benefit from this mindset, too. Sometimes it’s the smaller contractor that benefits more. 

If your company is working in someone’s home, take photos of the area where you are working and the adjacent areas where you may be staging materials or walking to and from the truck. If there are existing stains on the carpet, you don’t want to pay for carpet cleaning if you didn’t make the mess. Repairing nicks and chips in the paint or cleaning stains on driveways can quickly eat up your profits. On larger projects, you may want to take photos each morning when you start to document the site conditions, so if other trades are working in the area and cause damages, you aren’t liable for the repairs. 

There are some great apps and platforms that enable users to manage and organize their photos or other project documentation easily. A key point to remember is that the app or platform isn’t what saves you. It is the documentation you and your team creates that has value. Don’t get caught up on the latest technology or run out and buy the newest app. The focus should be on good documentation and how taking a few minutes to follow up with an email can be a lifesaver in the future. Remember, if it isn’t written down, it didn’t happen.

About The Author

FIRESTONE, a former contractor, is the owner of Firestone Consulting Group. He can be reached at [email protected].

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