We all understand the importance of hanging onto receipts for major purchases. It provides proof of purchase in case we ever need to enforce a warranty, and will provide evidence of work-related expenses for tax purposes.
The same principle applies to keeping records of key decisions in business. Every time we have a discussion that leads to an important decision being made, it is good practice to keep a contemporaneous file note. Well-managed companies will keep minutes of their directors’ meetings. Likewise, lawyers are taught as early as law school that they should keep detailed file notes on conversations with clients, especially those relating to original instructions provided, any oral advice that may be provided, and client directions regarding such matters as offers of settlement. Doctors and other professionals will keep fastidious notes for similar reasons.
The act of committing to written form what is being discussed forces the note-taker to be clear on what is being decided, and why. It will help us to identify who is responsible for implementing the decision, and what it is exactly that they need to do. It is helpful to circulate minutes after a meeting and get everyone’s agreement as to the outcomes (and to incorporate amendments as agreed to), as this avoids any dispute at a later time as to what was agreed to, and who was to be responsible for what.
Having good records place us in the best position to defend our actions if they are ever later challenged. Why? The human mind has an incredible ability to edit and mis-remember events. Courts are routinely confronted with competing witness memories. Often when thinking about past events, without any intention to do so, we will focus our attention on one or two points and forget other details that may also have been relevant. For this reason, oral evidence has its limitations. Contemporaneous notes will tend to be less selective than this – and so they are often crucial in successful court action. Judges generally view contemporaneous files notes as the best evidence of what actually happened.
When clients seek our advice about bringing litigation, a crucial question we will always ask is the extent to which contemporaneous records are available to demonstrate what was agreed, and why. Those clients who have kept good records of the events relevant to a dispute are at a distinct advantage. What counts in litigation is what is able to be proven.
Some simple tips:
*if you have negotiated an agreement about something, email the other party to confirm what has been discussed. Ask them to confirm your understanding by reply
*Keep a pen and pad with you, or a tablet for those who prefer tablet technology, so that you can make notes during key discussions. File these notes somewhere using a system that will allow easy retrieval if ever required
*If someone challenges what has been agreed, politely provide a copy of your contemporaneous record as proof of what you are saying, and then move the discussion forward confidently relying on that evidence
Our litigation team can assist you in circumstances where there is an argument over what has been agreed, including bringing or defending court proceedings if necessary.