The importance of evidence in a contract dispute

(It doesn’t matter what happened, it is what the evidence proves happened that is important)

“Evidence” is any information that may have an effect of the outcome of a legal dispute. It can be:

• written
• oral in the form of sworn testimony
• photographs
• hearsay information—within over a dozen exceptions to the hearsay exclusionary rule—or
• it can even be in a demonstrative form: as when a model is made by a party to a lawsuit to demonstrate what is claimed to have happened

Because evidence that can be introduced in a lawsuit is restricted by a number of admissibility rules, a major consideration should be given at the outset of any business transaction to what evidence will be generated and maintained as the transaction progresses. This will insure that the rights of the contracting party are best preserved.

THE BEST ADVICE ANY ATTORNEY CAN GIVE: If you are entering into a business transaction, you must be disciplined from the beginning of the transaction with respect to preserving evidence. As part of that rule, you must generate and maintain written records, to the greatest extent possible. Therefore, you must keep:

• copies of all of the contract documents
• all letters and e-mails exchanged by anyone associated with the transaction
• any logs or diaries that you develop during the course of contract performance

A good rule for any business transaction—from the sale of an item you posted on Craig’s List to a home remodel, to the construction of an office building—is that all interested parties should keep a daily diary of what happened, and a summary of any important conversations concerning the transaction.

For example, you are having a deck built for your home, and the contract does not specify that the contractor will remove all debris and leave the structure in a broom clean condition. However, the contractor told you when he was beginning work that you should not worry, that he will remove all debris generated during construction. If he fails to do, so leaving you with a charge to have the debris removed yourself, you likely have a claim against the contractor.

If you have a diary entry that you made at or near the time the contractor told you he would haul away all of the construction debris, your claim is far better than if you merely testify from memory as to what you recall the contractor told you about debris removal. That diary entry is likely admissible as a business record exception to the hearsay rule, and can be considered by the court. In that situation, the person with records will win nearly every time in a dispute against someone without records. Remember, It Doesn’t Matter What Happened, It is What the Evidence Proves Happened that is Important!

If you need a contract dispute attorney, call 720-389-5374.