There is a popular belief that in order to be a successful lawyer in court you needed to have been a member of the debating team in school and great at debating points of law.
Newsflash: That is a load of bunk.
The real truth is that while you have to know the law in order to steer a case the argument of law is less than 1% of the effort related to winning a matter and establishing that the law should be applied in your favour.
The law only comes into operation once you have established the facts. You work out what the facts are by looking at the evidence. It goes without saying that the best way to win a case is to use that other 99% of effort to obtain the evidence to establish the facts so that the law that applies to those facts is in your favour.
If you do not do that the evidence will lead to findings on a different set of facts that cause a different set of laws being applied that will not be in your favour.
The problem for trade contractors is they do not do what they have to do to gather the evidence they need as they go about their daily activities.
This is not difficult. In most cases you still do what you do but make some small changes so that you have evidence instead of a load of activity that gets you nowhere.
What do you have to prove?
All you have to prove is that:
| 1. | You performed the work to the standard specified in the contract; |
| 2. | Variation claims have been dealt with pursuant to the contract; |
| 3. | If you have not finished on time it is the builder that is responsible for the delays; and |
| 4. | You have completed all of the paper work to entitle you to payment including practical completion and final completion. |
How do you prove it?
There are three ultimate items of evidence being:
| 1. | The physical evidence of what is on site; |
| 2. | Bits of paper that have gone backwards and forwards between the parties; and |
| 3. | Sometimes in extreme cases electronic evidence. |
In order to provide some guidance about what will help I have discussed various items below.
The Contract
The best proof of the contract is the written contract signed by both parties. You should always make a copy of the signed contract before you send it back so that you can prove the contractual amendments that you made in the offer and acceptance process.
While verbal contracts are still enforceable the difficulty is proving what was in the contract.
A letter of intent is not a contract or a letter of acceptance and cannot be relied upon.
Text messages and emails
There are some occasions where emails or texts have been of some use but generally they have significant problems.
The first is that often they are not secured and disappear into the electronic nothingness.
The second is that the courts very readily find that the physical print out of the email or text is a forgery.
The best way to deal with this is to make sure that you use forms from an application that has independent proof of generation.
Diary notes
Diary notes have a mythical status when in reality they are worth nothing at all in most cases.
They are of no use whatsoever for the purposes of proving a discussion between a subcontractor and a builder. The strongest proof that a discussion took place and the contents of that discussion is a form called a “confirmation of discussion” sent to the builder that the builder has not disputed in written form.
However, a diary note created in a system that does not provide for alteration and amendment is useful for recording status on site and other similar issues such as who is working where on what, wet weather and where other trade contractors on site are working.
Faxes
These only become good evidence when the paper used is not heat sensitive and the sender keeps all of the fax logs and all of the transmission slips.
Photographs
It is sad to say that most of the photographs that have been waved at me as some sort of conclusive proof of so many things have been totally useless.
The most common problem it that they are usually just globs of colour on paper that are representational of nothing.
The way to make sure that a photograph is of evidentiary value is to:
| 1. | Include in the photograph some sort of scale such as a tape measure in the photograph to show the relevant dimensions; |
| 2. | Put the ultimate photograph in context bay taking a photograph of the room, then the wall and work your way down through a few photographs to get to the ultimate close up; |
| 3. | Go through this process from several angles; |
| 4. | If the subject of the photograph is poorly lit use an external light source set at an appropriate angle; |
| 5. | Ensure that electronic photographs are stored on a computer and not left out in the wilderness on a camera or even worse on a phone; |
| 6. | Keep a register of the photographs showing a unique identifying number of the photograph, date taken, time taken, machine used, place taken, direction of view and photographer. |
Just remember that is the photographer that will have to give the evidence about the photograph they took otherwise you are in the realm of that good old spectre called hearsay which is inadmissible as evidence.
Carbon books
In 28 years of dealing with building and construction matters I have not encountered a single entry in a carbon book that is of any use whatsoever.
The problems with carbon books are that:
| 1. | invariably they are simply not used; |
| 2. | they suffer from an inability to prove that they were in fact created on the date on them; |
| 3. | They have not been updated to meet evolving issues due to cost issues; |
| 4. | Because they require the user to repetitively write out a lot of data they are usually not properly completed; |
| 5. | The handwriting is usually illegible; |
| 6. | The content is rubbish because there was insufficient prompting of the data required; |
| 7. | The copy that is kept in the book is so faint it is useless. |
Documentation must be typed and properly completed.
Specifically designed programs are the best means of dealing with these problems.
Audio recordings and video recordings
Audio recordings and video recordings tend to be very useful provided certain rules are followed.
The other great thing about audio and video recording is that you are allowed to take them and make use of them to a much greater extent than most people realise (without having to tell people that the evidence is being gathered).
The first key to making them admissible evidence is to keep the registers similar to photograph registers outlined above. The photographer or recorder will need to give evidence.
Probably the easiest way to deal with the extensive law dealing with this type of evidence is to give a brief outline of what you cannot do.
The big four do nots are:
| 1. | Connect an unlicenced recording device to the phone line (the licenced ones let the party at the other end know that they are being recorded by emitting those beeps); |
| 2. | Record a conversation to which you are not a party; |
| 3. | Record in places that have an element of creepiness about them that amount to an invasion of privacy in such places as toilets, bathrooms, change rooms, fitting rooms and bedrooms; |
| 4. | Publishing your recordings by putting them up on the internet, handing them around or giving them to a news outlet or other form of publisher without some very specific legal advice. |
Once you overcome those issues you can record and film to your heart’s content and use them in evidence in a court, tribunal or adjudication without having to inform the other party that you are recording when they are interacting with you.
The best way to deal with the phone issue is to use a separate recording device while using hands free.
It is impressive how much aggressive and inappropriate behaviour that gets shut down instantly when you whip out the phone and start recording.
On the other hand if it is a long game you are playing, especially when dealing with the unions or criminals then it is best to use covert recording methods.
Getting help or more information
This article has covered a large number of topics, anyone of which could be the subject of a full day seminar.