Construction Litigation Tips – Daily Job Records
In an industry where disputes are frequently not resolved for months or years, and often through litigation, the importance of accurate record-keeping cannot be overstated. Construction disputes involving delays and extra work claims often become “swearing contests”, pitting one person’s word against another’s. Recollections are subjective. They change or dissolve entirely over time. The best weapon you have against changing stories and faulty memories is an accurate and objective portrayal of day-to-day project conditions.
A regularly kept construction diary or daily job report can help immeasurably in presenting your claims or refuting claims made against you. Essential factors which should be included in any report include: the project name, the date, the weather, the time of arrival on site, a list of your workers that day, a list of your equipment, a list of that day’s activities, a list of other contractors on site and a brief description of their activities, a brief description of the progress of the work, including any special conditions or problems, and a record of any special instructions you receive or give which includes the response to those instructions. Lastly, you should note the time of departure. Some of these items can be filled in during breaks or after the work day, but they should be filled in daily, with an eye towards completeness and accuracy. A daily investment of the minutes required to complete these reports can save many hours attempting to reconstruct events after the fact, and will provide a much more accurate and useful record. Obviously, such records are not much help in proving your case if they can’t be admitted in evidence. Technically, they are hearsay and are not admissible in evidence unless the party offering them can show they meet an exception to the rule excluding them. The most common ground for admissibility of job reports (often the only ground) is that the reports are regularly kept business records of the party who offers them as evidence. To meet this standard, the reports must be made by a person with personal knowledge of the events they describe, at or near the time the events described occurred and in the regular course of business of the maker and be kept in good faith. To avoid tripping on any of these evidentiary requirements at trial, assign a supervisor or foreman who is on site to fill in the report form each day. At the end of each week (or at regular intervals) collect the reports from each foreman and file them by project at your office. Make sure there is a report for each day you were on site, and that all are complete and accurate. If there are questions or gaps, address them immediately. At trial, testimony about your record-keeping methods and good faith in making and keeping them should be all you need to get them before an arbitrator, judge or jury.