There’s no getting around it: litigation is a messy, costly business and the last thing anyone wants to think about at the start of a project is the number of ways that project can go wrong. Many lawsuits are avoided or won through careful preparation. Here are five ways to prepare for litigation:
1. Sign a good contract. The construction and design contracts should protect the contractor. To that end, the contractor should consider some basic questions about the contracts. Are the terms clear? Do they reflect the business deal agreed to by the parties?
2. Make sure the scope of work is clear. The contractor’s work should be clearly described in the construction contract, and the best approach is to incorporate the architect’s design documents in the contract.
3. Follow the contract. Even the most advantageous contract terms are of no help if they’re not followed. The owner’s and contractor’s personnel should read and become familiar with the contract’s terms and follow them.
4. Write as if your words will be read back to you in court. During every project, hundreds, if not thousands, of e-mails, letters and other documents are passed back and forth between parties, and each document is part of the project record. Except for the very few that are protected by such rights as the attorney-client privilege, all documents are potential evidence in litigation.
5. Document, document, document. With so much paper, e-mails, phone calls and meetings consuming a busy construction project, a person can’t document everything because there aren’t enough hours in the day. The contractor should make reasonable efforts to document the progress of the project, the decisions of the parties and any errors or omissions made by any of the parties involved.
Hopefully, these documents will gather dust in the file cabinet, never to be looked at again. But by taking time to record the project, a contractor will be prepared for the worst.