Masonry Magazine May 2004 Page. 43
The final point to glean from this discussion is to always assume that your written documents may eventually be blown up and dissected in front of a jury.
The perception of events is critical. A critical issue in one of my cases was that a particular subcontractor was belligerent and difficult to deal with and that this behavior lead to project delays. In fact, this subcontractor's president had a penchant for writing incredibly aggressive, belligerent and even rude letters. One of his favorite writing techniques was to CAPITALIZE ENTIRE PARAGRAPHS TO EMPHASIZE HIS POINT AND INCLUDE MULTIPLE EXCLAMATION POINTS FOR EVERY SENTENCE!!!! Simply seeing this sentence gives you the sense that this writing style depicts yelling rather than talking.
The president used this style of writing on a consistent basis. As an added point of note, in person he tended to speak as aggressively as he wrote his letters. Regardless of the validity of the position he took, you can see where a skilled lawyer can easily make such a person appear combative, argumentative and obstructive to the progress of a job. Tone and appearance are important to a jury.
The final point to glean from this discussion is to always assume that your written documents may eventually be blown up and dissected in front of a jury. If you are angry or upset when writing, make sure you let the letter sit on your desk for a bit and edit it before it goes out. Also, try to be careful and clear in your selection of language in addressing a topic. It can also be a great help to have your lawyer review your correspondence if an issue is particularly important or if you have liability concerns relating to an issue.
Conclusion
IT IS ALWAYS best to make sure that you properly and timely document your position during the project. It is far better to have a letter that you can show to a judge or jury supporting your position than to be stuck with competing witnesses at trial. Be clear, direct and concise in your documentation. Assume that your documents may eventually be the proof at trial, and dictate the tone and attitude of your written documentation accordingly.
Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate-and business-related representation and complex civil litigation. He may be reached at tim@hughesnassociates.com, or by phone at (703) 671-8200.
This article is not intended to provide legal advice, but to raise issues on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.
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