Lessons learned from a recent trial. Be careful about the evidence you are creating.

I recently had the opportunity to represent a general contractor in a trial, defending against claims both of construction defects and of delay related damages.  Ultimately the case settled during the trial and we were able to achieve a favorable result.  Looking back on the trial, what stayed with me was the troublesome evidence introduced by the claimant, not related to the alleged construction defects, but related to the delay related damages.

Blown up on a 4′ by 6′ poster board for use during opening statements and throughout the trial was a copy of an article printed in my client’s internal newsletter recounting the difficulties on the project and, specifically, how those difficulties resulted in delays and cost overruns.  What made this especially problematic was that the article’s author engaged in a certain amount of exaggeration and hyperbole in order to make his points.  This was very compelling evidence and posed an almost insurmountable obstacle when trying to refute the claims for delay related damages.

The purpose of this blog post is not to suggest that companies should not learn from their mistakes, even if that means publishing an article in an internal newsletter.  In the long run, I think that it is of utmost importance that companies learn from their mistakes.  What I am suggesting is that companies should be careful in the manner in which they communicate, even internally, about those mistakes.  The lessons to be learned from an internal newsletter would be no less valid if the article is published after the active or anticipated litigation is resolved.  To the contrary, the lessons may be better received if the article is also able to include a description, not only of the mistakes made, but also of the ensuing dispute and its outcome.  Regardless of when such an article is published, it is of paramount importance that it be absolutely and completely accurate in the description of the facts.  It is exceedingly hard to defend against such evidence at the time of trial by arguing that the author engaged in exaggeration and hyperbole.

Be sure to learn from your mistakes, but do not repeat those reported here.