Long gone are the days where there is a trial by ambush, and witnesses are taken by surprise in being presented with documents they have never seen until they are in the witness box. Rather, the discovery process is typically carried out at an early stage in the process of a claim – well before trial.
That can be a very useful thing and allow full and balanced advice to be given to clients on the merits of a claim (or defence) and lead to claims not being pursued or to resolution through settlement negotiations.
Good record-keeping makes sense for any business, for a whole bunch of reasons. From a dispute perspective, good historical records can provide documentary evidence that support what a witness may recall, particularly given that most disputes are fought out some time (often years) after the relevant events occurred.
Good records afford protection when your work, obligations, advice, decisions or other actions are called into question. Contemporaneous notes of events are reliable and persuasive compared with reliance on memory alone.
Often, records speak for themselves about important events where witness memories have faded (or become distorted due to time and circumstances) or witnesses have passed away. Good records often support the credibility of evidence given by a witness.
The focus of attention at a mediation or trial of a claim is often on the written records that have been discovered by the parties.
Not only can good records assist a party to pursue or defend a claim, but records assist the judge (or other decision-maker) to understand the facts of a case and can greatly influence the decision that is delivered.
Contrastingly, poor (or no) records can create challenges that arise due to poor memories, inability to strenuously counter someone else's story, and the potential for a court to draw an adverse inference.
For instance, a lack of adequate records may support a claim of negligent work carried out by a business generally. If, in a case where the date is important and is at issue, a party has made a file note which is dated, this would greatly aid their argument if the other party disputing the date has no similar written record to rely upon.
There are, of course, no hard and fast rules about what amounts to good record-keeping.
A large part of it is just common sense and ensuring the records are taken and kept in organised fashion, can be easily located and retrieved. Of course the nature of the business keeping the records is important too, and any record-keeping system needs to be tailored to suit the particular business.
Certainly, keeping all written contracts is important (as is making sure that contracts are indeed in written form!) as are all records associated with any given project.
Diary and file notes are often relied upon as important written records of factual historical events. Whatever the record, it should be written in a way that it will be readily understood to someone reading at a later time, and who may not understand the author's abbreviations or jargon. Needless to say, illegible handwriting is generally unlikely to assist a party down the track.
A final word about "documents". Not surprisingly given how we all now operate, documents include those stored electronically.
So, if involved in a dispute there is a requirement on the parties to disclose email communications, and other records which may exist and be held on a computer or telephone.
And as a word of warning, there have been many instances of parties being required to deliver up PCs so that they can be analysed for the purpose of establishing whether records (likely to be unhelpful to the party being required to deliver) still exist on the computer, despite efforts having been made to delete the electronic records.
