When the Lawyer Calls: How to Document Your Project Files

Transcription

1 When the Lawyer Calls: How to Document Your Project Files By: Scott J. Hedlund, Esq. Deutsch, Kerrigan & Stiles, L.L.P. 755 Magazine Street New Orleans, LA September 24, 2014

2 Documenting Your Project Why should you document? Reduce the likelihood of litigation Identify issues Estimate or administer future work ASCE Code of Ethics

3 THE FUNDAMENTAL PRINCIPLES Engineers uphold and advance the integrity, honor, and dignity of the Engineering profession by: I. using their knowledge and skill for the enhancement of human welfare; II. being honest and impartial, and serving with fidelity the public, their employers and clients, and III. striving to increase the competence and prestige of the engineering profession.

4 THE FUNDAMENTAL CANONS Engineers, in the fulfillment of their professional duties, shall: 1. Hold paramount the safety, health and welfare of the public. 2. Perform services only in areas of their competence. 3. Issue public statements only in an objective and truthful manner. 4. Act for each employer or client as faithful agents or trustees. 5. Avoid deceptive acts. 6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession.

5 POTENTIAL CLAIMS THE COST ESTIMATE LACK OF TIMELINESS DEFECTIVE OR INCOMPLETE WORK INADEQUATE REVIEW OR INSPECTION IMPROPER APPROVALS OR CERTIFICATIONS The best protection is a properly documented Project from beginning to end. A person s memory is a lot better at the time of a problem than after the fact.

6 NOTICE OF CLAIMS Contracts may dictate the requirements of notice of any problems. Consult the contract for any specific notice requirements (i.e., written notice in 10 days or by certified mail, etc.). Establishing dates through contemporaneous documentation may help establish the understanding in the mind of the recipient. Written confirmation of communications can be used to document earlier notification of potential claims.

7 NOTICE OF CLAIMS: Notification can occur in a number of different ways, for example: Telephone and face to face conversations Job Meetings Letters Memos Any document that either expressly or implicitly acknowledges an event

8 How to Document: A documentation procedure should be implemented and used faithfully throughout the course of the Project. Contemporaneous documentation has immeasurable value. When using pre-printed forms, it is critical to fill out the forms completely in order to avoid later confusion, inaccuracies or inconsistencies. Do NOT write on the back of any documents.

9 General tips when preparing any documents to the file 1. BE CONCISE, but BE CLEAR: For example, a letter in response should read: In response to your (date) letter regarding the subject.

10 General tips when preparing any documents to the file: 2. Confirm meetings or calls IMMEDIATELY through documentation, including a reference to the date of the conversation, and the identity of any other persons who were present. Example: the opening line of a letter or can read: Confirming our conversation of (date). or Per our discussion of (date) or Confirming my conversation with your assistant, Mr. / Mrs. on (date) or At the site, we discussed...

11 General tips when preparing any documents to the file:

12 General tips when preparing any documents to the file: 3. Document FACTS, not feelings or conjecture. Do not send letters or s when you are angry. Always step away and calm down before you send it. Sarcasm does not go over well in s or correspondence, and can come back to haunt you in later years if there are claims on the Project.

13 General tips when preparing any documents to the file:

14 Good and Bad Words: Avoid these Words: Warranty Covenant Guarantee Certify Supervise Inspect Insure/Ensure Acceptable Alternatives: Represent Acknowledge Best of my knowledge or information and belief Observations

15 When do you use the terms warrant, guarantee, insure? You should NEVER use any of these terms unless you are contractually obligated to do so

16 CHANGE ORDERS A Change Order is a formal alteration of the contract, which authorizes additional time and/or dollars for changes in the work as originally defined in the Contract Documents. If a contractor is directed to perform work without an acceptable change order, it is very important to properly document that work. Ensure that all the required parties execute the change order as dictated by the Agreement.

17 Periodic site visits. FIELD REPORT Purpose is to observe work in its incomplete state (photographs during key phases of a build-out should be taken) and to determine whether work when completed is generally in accordance with the Contract Documents. Reports should be kept regularly in the ordinary course of business and contemporaneous with site visits. Critical to fill out all blanks in the Reports.

18 FIELD REPORT After every site visit, you should immediately prepare a report of your observations. Information to include Date and time of visit, including duration of visit; Identify those present on site, including names of subcontractors;

19 FIELD REPORT General accounting of equipment and crew size; General description of work being performed; Weather conditions and site conditions (including temperatures, temperature range, climatic conditions); Note any apparent deficiencies and action required (identify who you spoke to about any specific action);

20 FIELD REPORT Any meeting or discussions during visits, and the outcome if decisions are made; Issues to verify upon return to office; Rejection of any defective work (this should also be put into a formal letter for notice purposes to the contractor responsible for the defective work);

21 FIELD REPORT Conformance with schedule - percentage of completion and whether the project is behind/ahead of schedule; Signature by observer; Identify the individuals to whom to circulate the report owner, engineer, consultant, field office, contractor, etc.

22 FIELD REPORT Page Number account for each page of the total report. Don t use the back of a report to continue information it is too easy to overlook during a review and if a photocopying becomes necessary; Identify any photographs taken throughout the day; and Identify and include any attachments referenced.

23 FIELD REPORT

24 SUBMITTAL RECORD Submittal Log: Keeping a log is a critical activity. Helps document time of submission and review. A log can be used to establish any delay. Helpful in tracking submission and review by consultants. Identifies the number of reviews of each submittal.

25 SUBMITTAL RECORD

26 PROJECT MEETING MINUTES Regular project meeting minutes should be taken; Identify all the parties who attend the meeting (if there is a box next to a name, check it as required); Identify all the parties who receive a copy of the meeting minutes; Clearly identify each issue discussed, who discussed it, and any resolutions or actions to be taken with the responsible party.

27 PROJECT PHOTOGRAPHS Preconstruction Photos: Before any work is begun on the site the entire site should be photographed in detail, including all existing conditions. Take photos of major areas from different directions. The photographs should be saved on disk, and printed out for the file. Do not keep photos on your camera!! Avoid using personal cameras, including cell phones.

28 HOW TO DOCUMENT PHOTOS All Photos should be saved on disk and printed for the Project Files. Photos should be identified in Site Visit Reports. Each photo should be recorded with the following information to maintain a proper record: Date the photo was taken; Date Function on the camera itself;

29 HOW TO DOCUMENT PHOTOS Name of the Project, including the Owner and Company project numbers; Areas/locations photographed; Direction of view of the photo; Description of the photo subject; Reference to any correspondence or anything to tie it into the detailed project record; and Identity of the person who took the photos

30 PROJECT PHOTOGRAPHS ONGOING CONSTRUCTION PHOTOGRAPHS Even if project photographs are not required, it is beneficial to develop a regular period to take Progress Photos showing the stages of the project. These photos should be maintained in the same method as the Pre-construction photos.

31 PROJECT PHOTOGRAPHS When using a digital camera, make sure you use one with enough megapixels to allow the picture to be enlarged to at least an 8 x 10 print. Try to use physical references in the photographs to help establish perspective, i.e., coins, pencils, cars, etc., can be used to establish size and distance perspectives in different situations.

32 PROJECT PHOTOGRAPHS

33 TRANSMITTAL OF ELECTRONIC FILES Misuse Data degradation Software incompatibility Typical disclaimer: Copies of data furnished by that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern.

34 ACCIDENT REPORTS Contemporaneous Familiarize All Employees with Report Form Weather Conditions Sequence of Events Witnesses Date and Time

35 ETIQUETTE

36 ETIQUETTE The need for speed often requires rather than old fashion correspondence. This type of communication is acceptable, but remember that despite the informal nature of e- mails, when dealing with your job or a project, e- mails need to be professional in nature. Anything you write in an can be stored and retrieved by you, your boss or the recipients FOREVER. Be mindful of what you say and how you say it before you hit send.

37 ETIQUETTE The best rule of thumb when preparing a work related is to treat it as if you were writing a letter. Apply the same formal principles in letter drafting when preparing an . is meant to be BRIEF. You should NOT use work for personal exchanges, you never know what might end up in the file. See for tips on how to prepare s. Be familiar with your Company Policy on proper usage.

38 ETIQUETTE TIPS: These are some basic guidelines for any s: 1. Be concise and to the point, but not overly so.

39 ETIQUETTE TIPS: These are some basic guidelines for any s: 2. Be professional. This is also the Third Fundamental Principle and Fourth Canon of the ASCE Code of Ethics. 3. Answer all questions possible.

40 ETIQUETTE TIPS: 4. Reply in a timely manner. 5. Use proper spelling, grammar and punctuation. 6. Do not overuse the high priority option.

41 ETIQUETTE TIPS: 7. Do not write in CAPITAL LETTERS (it looks like you re screaming). 8. Don t leave out the message thread (although be careful when you reply all or forward ) 9. Use disclaimers to your s.

42 ETIQUETTE TIPS: 10. Read every before you send (if there is a dispute over a subject, it is best not to use ). Be careful not to express emotions or anger. Don t respond in anger. Take time away from the before sending if you are emotional.

43 ETIQUETTE TIPS: 11. Only use Reply All if your message needs to be seen by everyone on the list.

44 ETIQUETTE TIPS: 12. Resist the temptation to use abbreviations or emoticons. Please.

45 ETIQUETTE TIPS: 12. Resist the temptation to use abbreviations or emoticons. Please.

46 12. Resist the temptation to use abbreviations or emoticons. Please.

47 ETIQUETTE TIPS: 13. Do not forward chain letters.

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49 ETIQUETTE TIPS: 14. Do not use to discuss confidential information remember is NOT private.

50 ETIQUETTE TIPS: 15. Use the Subject field to indicate content and purpose make it meaningful. 16. Avoid long sentences. 17. All s related to a Project/Job should be either printed or saved in the computer project files. It must be retrievable when needed.

51 ETIQUETTE TIPS: 18. Your tone can t be heard in an sarcasm does not work in s, nor does it belong in work s.

52 ETIQUETTE TIPS: 19. Use a signature that includes contact information. 20. Don t use to criticize others or admit to any wrongdoing.

53 ETIQUETTE TIPS:

54 ETIQUETTE TIPS: 21. Be careful with the size of attachments, check with the recipient first if the attachments are large 22. Don t send or forward s that contain libelous, defamatory, offensive, racist or obscene remarks.

55 ETIQUETTE TIPS: 23. Do not rely too much on . If something is urgent, pick up the phone. 24. Be careful with overuse of bcc.

56 ETIQUETTE TIPS: 25. Know your company policy! 26. Enter address last.

57 TEXT MESSAGES Avoid using text messages if possible. If unavoidable, document the project file with the text message discussions.

58 Questions? Thank you for your time and enjoy the reception. By: Scott J. Hedlund, Esq. Deutsch, Kerrigan & Stiles, L.L.P. 755 Magazine Street New Orleans, LA