Construction Litigation Tips - Visual Records

Every construction project is an unfolding story always developing, always changing until the final result is achieved. Construction disputes form obscure parts of that story. If those disputes reach court they must be recreated in the context in which they arose, generally through testimony. Because of the complexity of events, the passage of time and the unreliability of most people's memories, testimony is not always accurate. Inaccuracy opens the possibility of judicial decisions based on an incomplete or inaccurate portrayal.

In many disputes inaccurate impressions can be minimized by photographic evidence which captures time and communicates better than any combination of words. A picture is often worth more than a thousand words. There are two types of feasible photographic records: still photographs and videotapes. Both have advantages, but still photographs have more flexibility and are easier to obtain and show.

Photographs should be taken systematically throughout the course of a project. Construction progress should unfold and problem areas highlighted in a series of pictures taken over time at the same locations. They should be taken by the same person if possible, both for continuity and for ease of identifying those photographs if used in litigation. Scale can be introduced either by including workmen in long shots or by using a tape measure in close ups. All photographs should be dated and locations identified, but additional comments should be avoided. Photographs should be stored safely, and the negatives preserved in the event a particularly telling picture would benefit from enlargement.

Video tapes are useful to record specific events such as test procedures or to capture a particularly compelling failure, such as leaks. But as a chronological record of events, their use is limited because of the time it takes to edit and show videotapes, and because lengthy videos are boring to watch. When videos are made, the date and time should be stated, together with a description of the project and the scene that is being recorded. Statements of opinion and conclusion, however, must be avoided.

This newsletter is intended to provide general information of interest to the construction industry. It is not intended to provide specific legal advice or to address fact specific issues. For that you should consult your legal counsel. Corwin & Corwin LLP assumes no liability in connection with the use of this newsletter. The Supreme Judicial Court may consider this material advertising.