The more your company regularly uses these documents to conduct business, the stronger the documents become.
This is Part of Business
Field and office personnel must understand that this is part of business and the daily routine.
Companies must train their personnel to create proper contemporaneous documentation. It means providing paid time for the preparation of these very important documents and set high standards. This is anything but automatic and ingrained.
As with everything we do, we need to understand the “what’s in it for me” aspect of what we do in order to be good at it and really care. Construction managers are professionals; this is a professional task that must yield a professional-level deliverable. Nothing less will do.
Use the daily reports. Review important notations in weekly meetings to set up action lists/agendas and improve performance through discussion. Compliment good reports that succinctly convey important items. Make these reports your working documents. Involve the author of the document in the discussions. Make his or her work on these documents feel important.
Legal Aspects and Purposes
The author of the daily report communicates what happened today. Yesterday was reported yesterday and tomorrow is at best a forecast without fact. Facts come in varying shapes and sizes. A fact can be something that did happen. Or, it can be something that did not happen (but should have, according to the daily plan). Stick to the facts—do your best to avoid conjecture and opinion. If you must state opinion, identify it as such. Report firsthand information on your report.
Documents can testify. Daily reports are considered hearsay. Anything said or written that is not under oath at the time and not subject to cross-examination is hearsay. You ask, then how can a daily report testify? Can the report eventually be used in evidence? (Remember, it wasn’t written under oath; nor was it subject to cross examination by the other party.)
The answer is “yes”—your daily report can testify. It can be introduced into court (or arbitration). In fact, the daily report, properly done and maintained, may be the best witness of all. Let’s investigate:
The Business Entry Rule
The Business Entry Rule is an exception to the Hearsay Rule. Documents and records used in connection with running a business or project are assumed to be credible. After all, what successful businessman would want to use false documents to run his business? For that reason, business records are given a shroud of credibility and can be admitted into evidence even though they are technically hearsay.
What Does It Take To Get Them Admitted?
The company (contractor) should have a written policy about its key business records, including cost reporting, daily reports, correspondence (e-mail) and personal diaries. The policy should establish a check and balance system to ensure accuracy. The policy should establish an authority (a manager) to ensure proper implementation of the policy. All cost documents must have vertical and horizontal accountability. Opposing attorneys often test the accuracy of all detailed and summary documentation and the accuracy of field and office documentation.
Your Attorney’s Success in Court
In general, what does a construction lawyer want in the way of daily records? In short, he or she wants your company’s standard-used documents; not ones prepared because of a potential impact or problem. Jobsite documents should use the facts to relay the events and tell the story of what did happen and what did not happen that should have. The records should show a gapless workflow or storyline based on fact so your attorney or forensic expert can show cause and effect.
Destroying Admissibility
Now that we know how to admit daily reports, let’s look at how we might “kill” this paper witness.
Here’s what will do it:
- Inaccuracies
- Entries “in contemplation of litigation”
- Self-serving statements
- Inconsistency in maintaining records
- Loss of some records
What Are the Claims that Daily Records Support
- Time and material costs under Changes Clause
- Constructive Changes
- Acceleration (formal and constructive)
- Suspension of work
- Impacts and delays
- Sequence Changes
- Disruptions
- Force Majeure
- Terminations
Constructive changes involve disagreements over interpretation of Contract P&S. Daily reports will help with means and methods, over-inspection, contract interpretation based on action, and much more. What brings strength and reduces interpretation to the content of the daily report? Here’s a brief list:
- Tracking additional work activities and impacted activities in support of the schedule
- Referencing specific drawings, sections, details
- Tracking by specific cost codes and issues
- Activity-centric reporting
- Relating impact documents to field activities
- Crew movements/reassignments
- Work effects from the environment
- Changes in means and methods
Making the Daily Report Happen
Never arrive at the construction site without the following items in hand:
- A hard-backed pad or clipboard and a pen
- A small durable tape or digital voice recorder
- A digital camera with date and time stamp
- A flashlight and tape measure
In Direct Support of Your Schedule
Be sure to get answers to the following items:
- Actual start of an activity. If it’s delayed, why?
- Were all items needed to start on-hand/ready?
- Were any activities stopped /postponed for any reason?
- The completion of an activity
How Do We Accomplish All of This?
We must make sure that we accomplish the “must” topics. After someone has read your daily report, he must have an accurate sense of the daily accomplishments, which are easily shown by a simple list of those items accomplished under your watch. You must also let him know what you planned to do and why it did not happen. Make sure to show where the list requires amplification—follow-up with adequate detail—without being wordy. Be sure that you tag the items with the necessary identifying items. Don’t make people guess. Remember, most people who read your diary don’t know your project or specific work. Spelling and superb grammar are not critical unless they lead to misreading.
Check for consistencies. You want to be sure that the updated schedule and your daily report agree on dates and relative status. Referencing the schedule supports the fact that the schedule is being used by the field.
List the manpower on your project. More importantly, indicate where they were assigned/working, especially if you are spread out over the job site.
Likewise, list the equipment by type and identifying number, and like manpower, indicate if it was active and where it was used. If it is down for maintenance, say so.
If an impact occurs, tie it into the schedule and reference the impact report. Present an overview, but don’t try to be an impact report. If your story/facts disagree with the impact report, both reportings become suspect. Concentrate on the contemporaneous aspects, which include the following:
- When was the first indication and who discovered it?
- On which schedule activity did the impact originate?
- Get and list names.
- Note time of day.
- Be specific about location.
- Separate fact from opinion.
- Think cause-and-effect.
- Include lots of photos.
- Think safety!
Always Avoid “Dangling Facts”
This takes us back to the very root of understanding how daily reports are used by non-project parties. All that we have said thus far aims at making daily report as strong as they can be. Why? So that people like attorneys (yours and opposing), forensic experts, percipient witnesses, judges, arbitrators and other relevant players can agree on what the report says and to remove basic identifying arguments. Remember this simple question:
- What can be read on your report by others?
The answer is simple—exactly what you have written. If your writing is not clear and facts are incomplete or missing, what happens next? Your daily report is either discarded as useless or others, using their related or similar experience, will interpret what you said.
Either way, your daily report did not serve to the purpose intended by contemporaneous documentation. It may even have become a “loose cannon.” The Sperin Doctrine may aggravate the situation.
Don’t Vent
Do not use your daily report to vent your feelings. Attitude does not belong in a daily report. Everything you write will be read and subject to interpretation. I have watched this become a disaster. Don’t use foul language—it only degrades the author.
The Weather
You are not the local TV weather announcer! Weather is important only if it affected your current work. Although it is interesting to know that a particular day was cloudy, that fact alone has no significance to your daily report. Facts that should be recorded include:
- What were the specific effects on your work?
- Did the weather affect safety conditions for ongoing work?
- Was certain work or work as a whole stopped? If so, was it all day, part of a day, or multiple days (left over from weather days before)?
- How were critical material/equipment deliveries affected?
- Were tests or inspections conducted?
Write for the Reader
The people who read and use your daily reports certainly won’t know the field work to the level of the author. Most post project reviews rely on your diaries to learn about the project. Essentially, you, the author, are the instructor and the job historian. You are writing for the reader, whomever that might be. You must remember that your report is at best, only your side of the story. But, if facts are recorded honestly and accurately, they belong to the actual story no matter who tells it. You want the reader to comprehend your side best of all. Stay away from any jargon not familiar to the general public. If you must use acronyms or mnemonic words/phrases, be sure you define them before or when you use them.
Be specific. A statement that at the time you wrote it seemed to you quite descriptive may be without value years later. For example, consider this entry: “We were installing that pump and the anchor bolts were too short.”
- What was the activity?
- What drawing detail was defining the projection?
- Which pump is being discussed?
- Where is it located?
- What did this discovery mean?
- What is the follow-up and when is it expected?
- What are the possible fixes?
- How much is too short?
- What successor work will this delay?
Be Truthful and Factual
If you know the facts, report them as best you know them. If you are unsure of some or all of the facts, say so. If the facts are obtained by you for another person, include it and provide names. Don’t get caught in an outright lie—this can discredit all that you have recorded. When getting the names, verify spellings.
Attachments
When you have referred to or used an attachment to complete or amplify your statements, do not lose it. And, keep a copy with the report. Without the attachment, your document may fail to communicate and will lose credibility.
Computer-Maintained Reports
Good business practice is to have a third party maintain a hard or soft copy of the signed daily report. This party can later testify that these reports are the original unchanged documents. This helps get past the electronic concerns allowing documents to undergo change.
Do Not Change
Once a daily report is signed, it should never be changed. If a mistake is found or the daily report needs editing, make the notations on the next daily report—don’t edit contemporaneously maintained history. This is a golden rule!
Other Noteworthy Items
- Tests and their results
- Inspections with pass/fail information
- Major material deliveries (complete, damage, correct, etc.)
- Jobsite visitations and reasons (arrive/leave info)
- Shared crane usage
- People issues
By now you are bored and genuinely doubting many items covered in this article. I assure you that each and every item is valid and a crucial aspect of daily reporting. Whether it be in the field, at laydown ya
rds, in the job office or at any one of a dozen other places where work is being accomplished, recordable items are ongoing and must be recorded for a full and complete storyline.
Gordon H. Aronson
Contributor, Construction Project Controls & BIM Report
Gordon Aronson is a registered Professional Engineer and has been involved in the engineering/construction industry over 40 years. He has been responsible for all levels of engineering and construction project management on various projects ranging from $300M in 1975 dollars to under $4M around the world. Gordon is President of Vision Consultants, Inc., an Arizona consulting firm providing a wide range of Primavera services and construction claims management services. Gordon is an Primavera solutions providers and certified trainer, a long time Construction industry arbitrator/mediator and provides complete Primavera installation, implementation and training services.
Gordon may be reached by email atgordona@visionconsultants.com or by posting a comment below.
