Notes Taken at the Time
In 1980, I got a lucky break. New England was in a deep recession, and just as my work backlog was running dry, my electrician gave me a referral. At first, I turned it down. The clients were “difficult”: They had fired the original architect and burned through two contractors. Way too many red flags. But with no new work on the horizon and a child on the way, I negotiated a solid hourly rate to work as an independent project manager.
The steady paycheck was welcome given the recession, and even though I didn’t make squat on the material and subs, I had little overhead and virtually no risk (and that turned out to be very lucky indeed). The real value was the experience which, looking back on it, was about 10 years’ worth crammed into the two years I spent on that jobsite.
I learned a lot about managing construction, but also about managing people and personalities. And I developed some good business-survival habits. One that has been popularized by former FBI director James Comey is often called contemporaneous notes. I called it a job log, but it amounts to the same thing: a written record of events and conversations more or less as they happen. My job log came in handy with these particular clients because they were hard to please and tended to jump to conclusions before all the evidence was in. They also changed their mind a lot and were infamous for not remembering something they said if it no longer served their purpose as well as it once had.
Lordy, I Hope There Are Tapes
This was in the low-tech ‘80s, so my tools were a bound paper notebook and a pen (erasable pencil is not recommended). My daily notes recorded weather conditions and the comings and goings of anyone on the site (subs, suppliers, inspectors, etc.), and briefly described who did what and—especially important—decisions made by you-know-who.
My 1980s low-tech is no-tech compared to the smartphones everybody on site carries these days. The ability of these devices to connect to the internet combined with voice recognition and high-quality audio and video makes it easier than ever to keep a detailed job log that blows mine out of the water.
Contemporaneous notes aren’t guaranteed to be legally admissible, but creating them is not a crime.
Why bother? Well, as we’ve learned from Comey and others, notes taken at the time can serve as legal evidence. More important, they might prevent a misunderstanding from ever getting that far, which is a much better outcome. Just resolving he-said/she-said controversies makes note-taking—or better yet, audio recordings—worth doing.
At the end of that marathon remodel, the owners filed a lawsuit against the original architects and engineers, and the original contractor. To my surprise. I was asked to participate in an informal “exploratory” meeting among the parties. It was not an official deposition, but it felt like one, with questions about who said what, when, and what happened next. Many of the events under review had occurred more than two years earlier, and the details would have been impossible to recall fully without the notes I took at the time. I never learned the outcome of all the finger-pointing that went on in that meeting, but I felt good about the accuracy of my answers. Just having the notes to refer to sent the message that I had my act together.
One-Party Consent
Contemporaneous notes aren’t guaranteed to be legally admissible, but creating them is not a crime. Recording, on the other hand—especially audio recording—might be illegal. Although most states require “one-party consent,” which means one person in the conversation must agree to be recorded, that person can be you. But 11 states (Calif., Del., Fla., Ill., Md., Mass., Mont., Nev., N.H., Pa., and Wash.) require “two-party consent,” a misnomer that actually means that everyone being recorded must provide consent.
While these laws are designed to prevent secret recordings (of employees, for example), they also apply to phone conversations with clients and subs.
When in doubt, be upfront about recording these conversations. Most people want to avoid misunderstandings and will see the value of speaking on the record. If they have misgivings, reassure them that the recordings help you avoid mistakes.
If they still have misgivings, maybe you should, too.
