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Friday, 01 August 2014 00:00

Tales of an Expert Witness: Sex, Lies, and Video (Part I)

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The subpoena shows up at the front desk and the call comes to you to pick it up. That nauseating feeling in your gut is the prelude to a long day… no… a long year. The lawyers want every contract and statement of work, each change order, log, email, document, physical mail, specification, test document, picture, drawing, scratch note, etc. that ever existed on your project. You reflect back on the project and wonder how many times you cut corners in order to get the project done. Well as "done" as it is. After all, the customer never did really accept the final product. Maybe you should have had the project health check performed.

You may think it will never happen to you, but it does—every day. Two realities, though, are certain, you cannot run your project in paranoia about every document and email you or your team sends and neither can you ignore the chance that a court may be the arbiter of the delivery. All of us have been on one of those ugly projects where we had to review the contract to determine the possible exit strategies. That is the first step in a short walk to litigation.

Never Admit A Lie; Better Yet, Never Lie.

How many times have you told that little fib? Maybe it is trivial. "We completed that today." However, you know quite well that the engineering manager promised it tomorrow. It is already two weeks late and you are anxious to get some good news to your customer.

Such a stretch sounds innocent enough. Then reality hits. The engineering group misses their delivery; you get frustrated and write a note to the project executive. You say, "To calm the client, I told them that engineering finished the job today, when I knew it would not be done until tomorrow. Now the engineering manager says it won't be done for another week!" With the delivery of the subpoena for all project documents, this email is now part of the court's evidence (part of discovery) and proves that you lied to your client. Your credibility, ethics, and character are now in question.

Contract Extension or New Statement of Work?

Although the details are deeper than this article, there is a fuzzy line between change orders and statements of work. Why do you care? A change order alters the parameters of an existing contract while a properly worded statement of work says you are effectively starting something new. The latter triggers the start of the statute of limitations while the change order does not. With the statute of limitations are implications on warranty period, implied acceptance, and limitations on liability. If you only use change orders, nothing is ever completed. As you might imagine, in a legal battle, lawyers dissect these distinctions. It is best to make sure that you define the use of each document completely and use them as defined.

Signatures Are Not Just A Formality

In litigation, signatures and dates are the Holy Grail. The absence of signatures means "failure to reach agreement." Missing signatures on specifications are fatal since that means the customer never agreed to what you were building. Absence of signatures on acceptance documents means what you were building never worked or was not acceptable. When you contend that the deliverable met the form, fit, and function you will have a difficult time convincing a jury if there are no signatures to prove it. Every deliverable must have a document with the signature of a receiving party's showing the items were satisfactory for use—even if only conditional.

Boilerplates Can Kill You

Boilerplates are great time savers. They can help fill up a proposal or SOW so that it looks impressive by its sheer volume. Their prior vetting lures you into the false comfort that they must be right and will save time and reduce frustration. They come with an inherent liability—increased risk from extraneous sections that are irrelevant in the current situation. Templates, like standards, often contain far more material than what you need for your project. Boilerplates are good as starting points to help you remember to include commonly forgotten items, but there are loaded with options, often contradictory, that may have no relevance. Accidentally leaving in two opposing sections is a lawyer's fodder to show incompetence on the part of the document's originator.

Clarity and Honesty

Clarity and honesty sum up the first part of this two-part article. It seems so simple. Company culture, financial pressures, personal achievement goals, pleasing the customer, and plain old greed, however, change how we deal with our clients. The best defense is a humble start and a truthful relationship. Although this will help to keep you out of court, lawyers will find ways to leverage your statements and actions against you. In the second part of this article, the discussion will focus on the dangers of certifications, standards, and trust relationships.

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