Embracing the dynamics of today’s technology, McLaughlin and McLaughlin (M&M) actively participates in select LinkedIn groups. When one of these groups discusses or addresses a timely, relevant, or vital topic that we feel would be valuable, M&M will offer a blog-discussion with LinkedIn excerpts on that topic. This is not to diminish the LinkedIn group discussion but to further share and stimulate insightful thinking presented in a condensed format.
This is consistent with the goal of this blog: To create a place for Project Professionals to share their knowledge in their area of expertise. Started by McLaughlin & McLaughlin in 2011, the Project Professionals blog intends to achieve a blend of pragmatic, practical and authoritative ideas and perspectives. Our focus is implementation of best practices to achieve desired business management objectives.
Although the LinkedIn Contract Risk Management Group is restricted to members, access seems to be easily achieved, and the value of the flow of information by knowledgeable contributors makes membership worthwhile. Commentary is always robust; thus, I recommend reading the complete string of comments within the Discussion at LinkedIn when possible. However, for brevity, I have selected excerpts that are “spot-on” when addressing this topic.
This recent Discussion was initiated by Tony Donnelly. Tony posed the following question
Is the growing propensity for writing letters on projects a major contributor to poor relations and an obstruction to achieving amicable settlements?
I think it’s a fair observation to say that the more trouble a project is in the larger the correspondence file is. I can never understand what people find to write about. On some recent troubled projects the correspondence files ran to several thousand letters, just between two parties. Most of the content was acrimonious, inflammatory and retaliatory. My old boss used to say “Do right and don’t write”. In those far-off days Royal permission was required by the head-office to even contemplate writing a letter on a project and as we were always feuding we never bothered to ask the HO, so letters were never sent out. My own rule-of-thumb is no more than about one letter per month, at the most. I once worked on a major record-beating project and exactly 63 letters were sent over a period of 28 months.
In the ensuing commentary, the following posts were offered as cited. The first selection addresses the general importance of written communications as well as all other project records.
John Walton • Can I please quote Max Abrahmson’s famous statement (as recorded in his book “Engineering Law and the I.C.E. Contracts”)
” A party to a dispute, particularly if there is arbitration, will learn three lessons, often too late; the importance of records, the importance of records, and the importance of records.”
While totally agreeing with this statement I think the problem is defining what is a record and what is a wasted piece of paper, i.e. a letter that adds nothing but bulk to the eventual bundle handed to the lawyers. The important stuff (other than notifications) is usually not sent between the parties during the actual occurrence, but later. “See everything and say nothing” is not a bad guideline, provided you still have it on paper.
Switching to the subject of e-mails, we have commentary from several perspectives.
Mark Cundiff, PSP • Emails carry as much weight as a letter. In reality they are more problematic than letters as those who receive and send emails often do not consider them as bearing the same weight as a formal letter. In reviewing project correspondence in disputes, my experience is that the majority of “smoking guns” are found in emails and hand written memos simply because it is so easy to respond quickly and emotionally following the receipt of some perceived affront.
[Snip]
There is nothing wrong with email as long as it is handled with the same professionalism as a letter. Keep in mind that in the event of a dispute, all electronic correspondence is subject to discovery; including internal emails as most legal systems require that electronic correspondence be preserved as a part of the official project record.
Another view of e-mail follows:
Tony Donnelly • Emails are fine as long as they are controlled in the same way as other documents. As Mr. Chin pointed out several months ago, the big risk lies with uncontrolled communications but there is no reason why ordinary letters, notices, reports etc can’t be sent by email. I much prefer this method of communication as it means that the printing and copying is done at the other end.
Most regulated companies that comply with some sort of quality management system (i.e. ISO9000) will issue laptops to project staff which contain a company-wide project controls and procedures software that only allows communications to be transmitted through the system. This means that the filing and document management are completed before the send button is pressed. It also means that in the event of the loss of the laptop, or the personnel, the records are safe in the server. The document controller also has one hard copy lodged in his archive.
Any PM that allows uncontrolled communications is asking for trouble. However, that doesn’t mean that all communications should be banned and open-channels can better facilitate the works, especially on fast-track projects but the PM should make clear at the outset what submissions he will stand by and support and what he won’t. This can usually be managed with a simple Project Procedures Manual issued at the outset containing standard disclaimers.
Mark has covered most of the points regarding the legal aspects but I will just add that a lot depends on the behaviour of the contracting parties. In the absence of stronger evidence then emails can and will be used in evidence in the event of a dispute.
Employers should be especially very wary of sending emails that may later be construed as instructions. [snip]
Another point to remember is that the tribunal may take the view that the Employer has used the emails systematically and systemically to control the project and he may have, in effect, by-passed his own controls such as VO procedures and requirements for Notices (Time-bars, etc). In fact, the more stringent the Notice requirements in the contract the more the need for discipline by the Employer so as not to prejudice his own safeguards.
For necessary Notices I will always record the delivery by asking for a signature of the recipient.
And further regarding e-mails…
Chris Hawkins • I agree that e-mails should be treated with the same degree of care as a letter, but that people often fire off e-mails without fully considering their impact. I find that people are more prone to misinterpret my e-mails, and I wonder if anyone else has the same experience? If the issue is important, I personally find it beneficial to think about it overnight, and then taking a second look at the draft. Also, an e-mail tends to generate an e-mail in response, whereas letters tend to generate letters. I tend to be biased in favor of letters for significant correspondence because it conveys implicitly the message that it was prepared with more care, and therefore should be treated more considerately.
Always be prepared to accept critical review of any correspondence in potentially adversarial settings.
Greg Powers • I’ve been watching the views on this topic continue to shift around and I think the latest comment by Chris is very relevant… the question is WHY are you communicating?
If it is about notice, ensuring a proper time stamp is key… so, we tend to send by mail PLUS an email with attachment (thus a contemporaneous time stamp from the email system). We never rely on the email as the ‘formal’ notice, but we DO use it as a ‘smoking gun’ bit of evidence on occasion.
I always advise clients that they need to be prepared to see any part of their email/letter/note etc… on an 11 foot screen in front of a jury who is trying to figure out who is telling the truth, who is game playing, who is honestly trying to solve problems… and who has the best credibility…
If you cannot sit still in a witness chair when your ugly rants about the other side come up on the screen (and you WILL sound defensive when the opposing attorney has their turn), then you should not write the rants…
Go visit… or make the call… and be respectful and nice, even if they are knuckleheads!
Lastly, I appreciate the stiletto vs. sabre comment and find well placed strategic letters produce a far better result than just a blizzard of paper.
Taking an overall perspective, consider this general guidance. The courtesy mentioned can serve to diminish the reaction that Tony posed in his original question, “…a major contributor to poor relations and an obstruction to achieving amicable settlements?”
Chris Hawkins •The relevant questions are (a) why are you communicating (i.e., what do you hope to accomplish), and (b) are you comfortable for your communications to be read closely by an arbitrator or a judge. If you have any doubt on the second point, then either sleep on it, or show it to a colleague, or both, before you send it. Also, all surprises, by their nature, are bad. So, if a potentially contentious issue comes up, a visit or phone call warning your counterpart that an e-mail and letter is coming
is a professional courtesy (which may be reciprocated, but in any event will make you look good if a full-blown claims situation develops), and may help to defuse some of the emotion. We all would appreciate this courtesy if the situation was reversed. Consider that when your letter comes in, your counterpart is going to have to explain it to his or her boss, so if you give them a “heads-up” they can take a look at the situation from your point of view, and start formulating their response, before the pressure is ramped up.
The e-mail database on a given project can be a source of issues. The following comments emphasize this point.
Greg Vialpando • It is extremely important that the Contracts Manager teach (or rather pound into the project team’s heads) to keep emails professional and Greg correct. I recently completed a large litigation against a client where in the discovery and deposition phase there were an incredibly large number of emails that even in jest were detrimental to the case as the opposition took every opportunity to utilize them in an attempt to discredit witnesses, demonstrate bad faith and generally punch holes in our case. Today’s emails get put up on a 6×8 screen for all to see. It is a harsh lesson to learn.
In this discussion, I added the following thoughts as a sort of “bottom line” summary from my perspective:
George McLaughlin • Formulate a Communications Plan for your Project Execution Plan. Include many of the items discussed in the discussion above. Include delegation of authority. This plan must recognize the reality of the project. On large and complex projects, the type and amount of traffic (expected number of communications per day, etc.) must be analyzed. Speed of response and impact of the issue need some sort of tradeoff analysis. This is further complicated by the resource pool or level of staffing that the project can reasonably justify.
The form of communication should comply with the applicable requirement (if any):
1. Contract – comply explicitly with the contract requirements
2. Applicable Law – absent contract language, have legal advisor opine on this area
3. Company standards – follow the rules
4. Industry Practice – I guess this is the fourth option.
[Snip]
Focus the communications on the major issues. Do not judge the effectiveness of your communications by counting the number of documents or putting the paper on a scale and weighing the bundle.
As a project/construction/contracts/business manager and similar, it is imperative that you are continually alert to the communications of your own team. Your team’s communications to other parties or stakeholders can be problematic. Unthoughtful communications can create problems and have untended consequences. Detect these communications early, and undo or mitigate any negative consequences quickly.
Good luck and happy communicating.
It is important to note that McLaughlin and McLaughlin [M&M] is not a law firm and is not intending to provide legal advice. M&M is a consulting firm providing (among other services) non-legal expertise in dispute resolution and litigation support. For further information on M&M services, please see www.McLaughlinandMcLaughlin.com.