Facts Win Cases

Every contractor has experience with construction disputes. Potential arguments (and court cases) lurk on every job site. When a dispute pops up, it’s not enough to insist, “Oh no, you told me . . .” You need hard facts:

•           Correspondence, written or e-mailed

•           Notes on conversations, directions and decisions

•           Minutes from job site meetings

•           As built drawings with dimensions

•           Inspections, tests, logs and reports

•           Responses to requests for interpretation.

The more complex the job, the more facts you’ll need to win any dispute. My architect friend Bill Mitchell tells a good story that illustrates the point – and offers a tip any contractor can use. Bill’s story starts with a job in San Francisco.

The next time you’re in San Francisco, walk through Neiman-Marcus store on Union Square. A central atrium runs the full height of the building. At the top of the atrium, a gorgeous stained-glass rotunda spans the entire space. I’ll let Bill pick up the story from here.

In 1984, I was about the eighth project architect hired to restore this rotunda after years of neglect. When I got involved, construction was already under way. My job was to oversee design. If you haven’t been to Union Square, I should point out that the Neiman Marcus rotunda is about the same size as the dome on most state capitol buildings.

The job had issues, and I really mean issues. The first problem was budget. The original rotunda consultant took his share and split, leaving me to complete the project on a shoestring. The next problem was materials. Reconstruction had to use as many of the original plaster pieces as could be salvaged. The dome had been broken out with crow bars and axes, trucked across the bay to Oakland on an unpadded flat-bed truck and then dumped in a public storage facility. There the pieces remained for eleven years while zoning and plans for the store crawled through layers of public approvals. Over those eleven years, souvenir-hunters helped themselves to armloads of the ornate antique plaster pieces. That’s when I got involved.

My inventory of the plaster parts revealed that only half the rotunda remained. The other half had vanished. I set up a plaster fabrication shop, did the shop drawings, and had crews start molding the missing plaster pieces. In the meantime, the general contractor was erecting the rest of the building around us.

The project was awash in design, construction and political intrigue. Any job like this attracts prima donnas – and their lawyers. I hated going to work. The entire site was thick with resentment, complaints and animosity. I couldn’t possibly keep written notes on all that. I had to innovate.

I bought a small hand-held tape recorder and a bag of blank tapes. (Remember, this was 1984.) Every day, hour by hour, minute by minute, I recorded everything that happened on that job: descriptions of the work, the people, the meetings, the attitudes, the refusals to cooperate, every verbal dispute, theft of our new plaster castings, everything. I made what had to be the most complete audio archive ever prepared for a construction project.

We finished the job in time for the grand opening. The rotunda was beautiful – and still is. Have a look the next time you’re in San Francisco. But, as I expected, blame ran hip-deep at project closeout. My company hired a defense firm to fend off legal attacks. When lawyers asked for my files and notes, I was ready. For months, my secretary had transcribed my audio recordings – over 200 pages of day-by-day, moment by moment, blow by blow accounts of the design and construction process as it actually happened. Everyone involved in that project had egg on their face. Clearly, no one was blameless. And that, to my relief, was the last we heard from opposing counsel.

Collecting the facts is much easier today. All you need is a cellphone. Just punch the record button. When you get into a dispute, let your cellphone do the talking.

Even better, work under a contract that resolves issues in your favor before they happen. The section “Responsibilities of Owner” in Construction Contract Writer will do that. The trial version of CCW is free.