If it is not in writing, it didn’t happen

Most insurance companies will tell you that one of the key clam drivers is a breakdown in project communications, whether it is a failure to communicate, lack of communication protocol, miscommunication or undocumented communication.   It is important to establish lines of communication under a formally adopted, written quality control/quality assurance (“QA/QC”) program.   This should address internal firm communications, as well as external communications with consultants, the Client, the Contractor and building authorities and the like.

At the start of the project, written communications with the client supports the architect’s understanding and reliance on the client’s program, information about the property and governmental restrictions, and maybe even budget.  The agreement between the owner and architect is perhaps the most important “written communication” as out outlines the roles and responsibilities of the parties.

Internally, some form of written communication between supervisor and subordinate serves to demonstrate the exercise of responsible control.  Written communications amongst architects and consultants show coordination efforts.  Written communications with the construction side during the design phrases properly documents constructability reviews and value engineering decisions.  During the construction phase, written reports document the architect’s site observations and efforts to address field conditions.

All of the above is not only necessary to provide for the orderly progression of the project but to provide proper documentation of decisions made during the course of the project in the event of claims both during the project and following completion.   “If it is not in writing, it didn’t happen.”   If a claim arises about a change made in the field during construction that was directed by the architect to resolve a failure of follow the plans and specifications originally, but the circumstances were not document, it becomes a “he said/she said” situation dependent upon the credibility of witnesses.  The best evidence would have been a clearly written report and/or ASI about the issue.  Document, document, document.

However, there can be such a thing as bad documentation.   You don’t want to craft an overly detailed site observation report that misses key elements.   More is not always better.  If it is too long, someone is likely not going to read it or merely skim it.  Be deliberate in your writing.   “KISS” – keep it simple stupid.

As most documentation nowadays occurs in emails and texts at lighting speed, it is important to pause and think how your emails and texts would look as an exhibit in a trial.  The informality with which most people use electronic communications lead to sloppiness, grammatical and spelling errors that can be misinterpreted, and/or disclosure of errors or omissions and/or sensitive personal topics.  Think of emails as lasting forever.  Even if you delete them, they will still exist somewhere on the firm servers.   At the time of litigation, a demand for production of documents will seek such electronic files in native format and meta data.   The offhanded joke about someone in the office and/or in the field will paint you in a bad light.   Your internal communication about slow RFI responses, lack of consultant coordination or missed waterproofing details will be used as proof that your firm fell below the Standard of Care.   Texts seem easy at the time but are even more informal than emails.  They are shorter and usually sent in knee jerk fashion without proper deliberation.  Texts are likewise discoverable in litigation, not only on firm owned devices but even personal phones if used primarily for work.  In the production process, someone misses a purely personal exchange that is now out in the open.  Don’t think for a minute that the other side won’t try to use that to embarrass you if nothing else.

The bottom line is that you must document key decisions, directions and incidents that occur during the design and construction phases.  However, think about how you are documenting something.  Be deliberate, concise and before you hit send, pause and think about how your report, email or text will look all blown up in a courtroom.