Ninety percent of construction disputes are fact-driven


Guest Posting by Matthew J. DeVries, Stites Harbison, PLLC
Best Practices Construction Law

Facts are important. More appropriately, facts are really important! I have found that a construction dispute with good facts and bad law can, nonetheless, result in a good outcome. Rarely, however, do you find that bad facts and good law will result in a good outcome.

Since facts are so important, what can you do to develop and preserve the facts necessary to help you win your case? Here are some tips:

1. Keep written records. Although conditions in the field may constantly change, make sure you have a process in place to reduce to writing all pertinent facts that affect construction. This may be a changed condition, interference by another party, unusually severe weather conditions, a change in material price, etc. If you have a pertinent conversation by phone or in person, make sure you follow-up the conversation in writing. I cannot tell you how many times I have heard, “Well, they agreed to the change order on the phone.”

2. Record just the facts. If you take the time to record the facts in writing, make sure you leave out all the informal language and other information that will make a good exhibit in litigation. There is no need to tell the owner’s representative that he is an idiot (…even if he is…) in a request for information. There is no need to tell the contractor’s project manager that he is incompetent (…even if he is…) in an email responding to the RFI. Stick to the facts.

3. Organize your information. Whether you keep hard-copy documents or you have incorporated the paperless project, make sure you take the time to use a folder structure system that organizes the information in a chronological manner. This will help you (and your attorney) in the event a dispute arises.

Although this is my own personal opinion, remember that 90% of disputes are fact-driven … which means that you need to get the facts right, reduce them to writing, and keep them organized. Read More.