The Records You Keep Can Make or Break Your Case
Statistics show the vast majority of legal disputes are settled before the trial stage. This is because the high cost of litigation can wear down the initial resolve of the parties who believe they are 100 percent correct in their position and believe the other party should pay for whatever injury they feel they received.
In some instances, however, one of the parties refuses to resolve the dispute and insist upon having their day he in court. It is at this point, usually, that the initial preparation begins.
For example, before the lawsuit is commenced, certain conversations will have taken place between the parties. In the construction industry they usually relate to the refusal of the owner to make a payment because of a feeling that the workmanship or materials do not meet expectations.
This particular point in time, with the facts surrounding the dispute still fresh in the minds of both parties, will govern the evidence to be introduced at the trial some one or two years down the road.
At a trial, you will be called upon to remember the exact circumstances surrounding the dispute as well as conversations that took place. You would be well advised to keep concise notes regarding the dispute so you can use the notes to testify from in court.
Every contractor should regularly take pictures of the job, showing before, during, and after workmanship. This way, at the time the dispute is later resolved by a court, or even in the early stages of settlement discussions, the pictures will reveal the extent of the damage. Often, the lawyers are able to determine during depositions leading up to the trial that the owner’s claims are trivial in nature. After reviewing the pictures of the "damage" (often supplied by the owners themselves) their attorney, for the first time, fully appreciates just how trivial the claims really are. If the contractor can assist in this process by taking pictures at the right time, those pictures can save you much aggravation and many dollars in legal fees later.
If you use subcontractors, there may come a time when you no longer have a satisfactory relationship. It is important that you have a written statement from the subcontractor or an employee that is taken at the time the issue first arises. Later, if the subcontractor/employee is unfriendly towards you and it becomes necessary to introduce their testimony at trial, it will be very handy to have their earlier written statement about the dispute with the owner in writing to refresh their memory or perhaps impeach them if they misstate the facts.
By now, most contractors should know a contract must contain certain information mandated by state and federal laws; otherwise you risk the possibility of losing the lawsuit before it begins, just on a technicality. The owner can take advantage of your failure to have all the proper language in your contract.
If you used a properly drawn and executed contract in order for you to prevail regarding a dispute over workmanship or materials, the contract documents must include copies of drawings, specifications, blueprints, etc. that comprise the basis for the design of the project and set forth, in detail, the scope of the work you are to perform.
The best way to accomplish this is to have the owner sign the plans, specifications, etc. bearing the same date as the contract itself; incorporate them, by reference, into the contract. This way, they can not, at a later date, or during trial, take the position that they never gave final approval on the specifications, materials, etc.
In this highly regulated industry and with our lawsuit-happy society, the more you think like a lawyer from the very beginning of entering a business relationship the better off you’ll be in the event you end up in a dispute. Therefore, you are encouraged to:
Use a comprehensive set of contract documents that comply with all the licensing regulations and consumer protection laws.
Make detailed notes of discussions between yourself and the owner when it first appears that a dispute is brewing.
Take pictures of the work before, during and after the job to demonstrate in physical evidence the actual state of workmanship.
Lastly, and perhaps most importantly, have your subcontractor or employees provide written statements at the time disputes arise with respect to things said to them by the owner or that they said to the owner.
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