Documentation – Your Best Defense for Professional Liability Claims

By Mark Jackson, JCJ Insurance

Communication is essential to every part of a project. Good communication can help ensure a project’s success, while poor communication can lead to disputes and claims. Documentation is the narrative of the project that forms the legal project record. Documentation plays a crucial role for architecture and engineering firms when disagreements or disputes arise on a project. Firms can reduce their exposure to claims with good documentation practices.

Have you ever heard the saying “it’s better to have a short pencil than a long memory”? A written record of events is often more believable than a person’s memory. This could not be more true than in the context of construction claims. Most claims occur after a project is complete. They tend to happen sometime in the future, oftentimes many years later.  Documentation becomes your lawyer’s ammunition in presenting your defense if you are ever involved in a professional liability claim.

Did you know that approximately 1/3 of professional liability claims are due to non-technical issues, such as breakdowns in communication and poor documentation? Wouldn’t it be great if you could implement best practices that can help you decrease your chance of a claim by 33%? Documentation is your best defense in mitigating the impact of future claims.

Documentation includes more than contracts and construction documents. Oxford Languages defines documentation as “material that provides official information or evidence that serves as a record”. So, by definition, documentation includes all of the following:

  • Written information – emails, texts, social media posts, letters
  • Audio/video (Teams, Zoom)
  • Photographs
  • Computer records
  • Meeting Minutes
  • Site Visits
  • Submittals/RFIs/Change Orders

Project documentation includes external communications with your Subconsultants, the Client, the General Contractor, etc., but it also applies to internal communications with your team. You need to assume any and all of these types of documents are discoverable. For those of you who have not been involved in a professional liability claim, discovery is a pre-trial procedure where each party can obtain evidence from the other parties. So, all of those emails, photos, texts, and even voicemail messages are turned over to the other party, or worst case scenario – read to a jury.

Here are 8 best practices firms should consider regarding documentation:

  1. Contractual Agreements:
    • Maybe the most important piece of documentation – contractual agreements. In the event of a dispute, having detailed records of the agreed-upon terms and scope of services can be instrumental in resolving conflicts, defending the firm’s position, and potentially getting dismissed from a claim.
    • Contracts should be executed with the Client and any Subconsultants prior to the start of the design phase.
  2. Responsibility for Documentation
    • Determine who is responsible for project documentation. Your firm should designate one or two people per project that are responsible for ensuring key information is properly documented and retained per your company’s policy.
  3. Meeting Minutes
    • Decide who is responsible for preparing and sending out the meeting minutes. This role trends to change depending on where you are in the design process. During design, the design professional should be responsible for the minutes. Once the project moves into the construction phase, the General Contractor typically assumes this responsibility.
    • Require design team members to take and share meeting notes for all meetings
    • Publish meeting minutes/report for every significant meeting within three days and ask for any changes within a certain time frame.
    • When you receive meeting minutes, it is very important to check them for accuracy. Meeting minutes are the historical facts of the project. If they are inaccurate but you do not object or amend them, it will be hard to argue against the facts as written when a claim arises in the future.
  4. Record the decision-making process.
    • Documentation serves as evidence of the decisions made, actions taken, and the rationale behind them.
    • If you have objections or concerns with decisions being made by the Client or General Contractor, this needs to be documented.
  5. Submittals/Change Orders
    • Projects often evolve, and changes are made throughout the process. Documenting these changes and the reasons behind them can help the firm explain the evolution of the project and demonstrate that modifications were made with due consideration and owner approval.
  6. Site Visits
    • Prepare a written report promptly after each visit.
    • Most site visits are for the purpose of observing a specific phase of the project. Your report should be limited to the purpose of the visit.
    • The report should avoid editorial comments. The report should be limited to just the facts.
    • Record factual observations and conditions.
    • Remember your notes and reports may be reviewed by others in or outside of your firm.
  7. Emails
    • Avoid an overly casual tone and inflammatory content. Pause when you are angry and carefully consider the email you are about to send.
    • Don’t criticize anyone – team members, subconsultant, clients, etc.
    • Identify and store email correspondence in a project file for future reference.
    • Make the subject line to match content.
    • Minimize the use of IM and text messaging for business communication. If a client insists on these forms of communication, follow up with an email so the information can be recorded.
  8. Photos
    • Photos are documents so be careful when taking pictures of the progress of the project. Pictures preserve everything – including non-conformance and unsafe conditions.
    • You should have a purpose for your site visit and the images should be limited to this subject.
    • Create a company policy for your process of taking pictures. How many do you take? Who is responsible for reviewing them? Do you save specific pictures or dump them all in the project file?
    • Photos must be reviewed. As a licensed architect or engineer, if your photos capture something unsafe, whether or not it was the subject of the photo, you have an obligation to address it.  

In closing, documentation is your first and best defense in the event of a claim. It starts with your contract and continues throughout all phases of the project through completion.  Documentation is a proactive measure that helps architecture and engineering firms manage risks. It is important to establish consistency for communicating, documenting, and retaining project information.