I’m sure all of you are familiar with the expression, “finding the needle in the haystack.” It happens to be an excellent metaphor to describe some of the work I have performed over the years when investigating disputes, especially those involving arbitration or litigation.

You see, construction projects require significant amounts of documentation, due to the detailed and factual nature of the business. In those cases where there are disagreements, or disputed issues (nearly all projects), there is usually a tremendous amount of correspondence created by the parties trying to present their respective points of view. Typically, these situations lead to furious back and forth arguments that can go on for long periods of time. Quite often, the writers don’t remember what they wrote many months, or years before, while they were in the heat of the battle of words, unsure, or unaware of where their dispute was headed.

When I get involved in a forensic (after-the-fact) analysis of the issues on a fairly typical project, it is not uncommon for me to have to sift through anywhere from 10,000 to 100,000 documents (or more) consisting of e-mails, correspondence, daily reports, meeting minutes, and other project records. It’s interesting that in nearly all cases the outcome seems to rest on a handful of critical documents – the “needles” that I find among the “haystack” of the universe of project records.

What I have found even more intriguing is the surprised reaction of the participants whenever they are confronted with the discovery of one or more of the key documents. Usually, they simply have forgotten that they authored the contradictory, or incriminating document. This, of course, compels them to deny the authenticity of the document, or to spin the meaning of its content to a level of absurdity that results in a collapse of their credibility, and their argument along with it. At this point, after going through a long and expensive process, what may have appeared to be a battle worth fighting, turns out to be a costly disaster that should have been avoided.

I share this with you to make the following points of application:

1. It is not necessary to write extensively, or often, about a specific issue. It is far more valuable to state the facts of an issue in writing, clearly and thoroughly supported by all available evidence. What is critical is that you write about your issue TIMELY (in a way that complies with the terms of your contract). You can always add more facts to an issue, as conditions develop, but you don’t need to repeat the argument, or build a thick file of correspondence on an issue with the hope of winning a paper war simply by the weight of the paper. If the facts are on your side, there is truth to your argument which should support a successful outcome.
2. Before you take a strong position on an important issue, make sure that you research it completely. Look as objectively as you can at all possible documents that may bear on the issue. Get an impartial outsider to look at it with you to make sure you’re not misinterpreting the key facts in the argument.
3. If you find the need to change your argument along the way, there may be reason to step back objectively and re-evaluate the strength of your position. Perhaps you don’t have a sound argument, or the facts really don’t support your position. If that’s the case, you may be foolish to continue with your argument. This should be an indication to you to consider a compromise, or “settlement” strategy for your issue.
4. Before you decide to venture into arbitration or litigation of a disputed issue, become familiar with all of the project documents that speak to that issue.

Remember it’s far better that you discover the “needles” in your “haystack”, if they exist, before others do it for you after great expense, to your detriment.

E-Book version now available!

I have good news for those of you who have yet to purchase a copy of my book “Document to Reduce Risk”. The e-book version is now available at Amazon and Barnes & Noble. This format will allow you to have immediate access to valuable advice with all of the sample documents you can use to write about issues on your projects (available for instant download through links from the e-book directly to your smart phone, tablet, or computer). With a copy of this resource, you will be carrying with you the tools you need to stay ahead of the game with good documentation to reduce your risk!

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