Construction Litigation Tips – Letters

Industry Knowledge Meets Legal Experience
Proven Counsel for Construction Projects

Letters in the construction world serve two purposes. The first purpose is to convey information to someone else. The second is to establish a record for future reference. What you did or said to someone last month, last year or three years ago is much easier to remember when you have a letter confirming it. While many lawyers will object to the admissibility of a letter because it is “self-serving”, the objection is seldom sustained. In arbitration, a knowledgeable lawyer won’t even bother to object. A famous judge once suggested it is rare that a letter is not meant to serve one’s interest. Some people consider letters a bother. In an earlier generation, when contracts were made with the shake of a hand, confirming letters may not have been necessary. But in today’s competitive high-tech world, with six inch specification books and dozens of plans, relying exclusively on the spoken word is a mistake.

Given the philosophy that “say it in writing” should be plastered on your project manager’s walls, the next question is when do you write a letter. Here are some basic rules. First, whenever you receive a letter that says something you disagree with, answer it, point by point. Second, all contracts, including plan or specification changes, should be confirmed in writing. This includes all changes, no matter how insignificant. Third, if something significant to you is left out of the minutes of a meeting, say so in writing. Fourth, any agreements you make with the other party to the contract by telephone or in person should be confirmed in writing. If the other party is acting in good faith, he or she will never object to a written confirmation. All writings should be written, faxed and mailed immediately when the matter is fresh in the parties’ minds. A letter written even a short two weeks after meeting minutes were received can be questioned. The denial of a change to an agreement after the work is substantially done is at least suspect. So is the late confirmation of an oral agreement. Even honest businessmen forget. Those with less than honest intentions may forget sooner.

Aside from obtaining the discipline of writing letters, the hardest part of communicating is how to say it. This is especially true when relationships get testy. One approach is to “say what you mean.” Still another is “to write it just as you would say it.” One rule that always should be followed is never say anything you wouldn’t want to see on the front page of The Boston Globe. In other words, be professional. Some examples of letters that violate professionalism and should never have been sent include: “If you think I am going to furnish the [disputed item], you should see your psychiatrist.” Another example is, “I’m never going to pay that two bit crook a dime.” Still another is “That’s absolutely bull_____.” “Say what you mean” and “Write it as you would say it” have their limits. Remember that your writings could find their way to a judge’s desk. It is rare that a judge will be swayed in your favor by the passion that inspires gutter talk. The passion might mean something, but the expression will surely dull the impact. Your letters should be easy to understand. They will be easier to understand if the sentences are short and simple. Each topic usually deserves a separate letter to avoid muddying the issue. It takes time and energy to generate a letter. But it takes a lot more time and energy to remember oral agreements long after the project is done.

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